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I’m seeking further clarity on this, but just as the Senate Armed Services Committee’s first panel on military commissions was wrapping up, Pentagon General Counsel Jeh Johnson strongly suggested that if the administration considered someone to be dangerous, it could detain him after a court acquitted him of a crime.
“If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”
Martinez looked surprised. “So the prosecution is moot?” he asked.
“No, no, not in my judgment,” Johnson said. But the scenario he outlined strongly suggested it is.
Uh, lawyers? Please weigh in here…
Update: Of course, in Johnson’s defense, the White House’s Department of Law can just overturn any verdict anyway.
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Non-lawyers say that POWs can be tried for criminality and still remain POWs.
If Jeh Johnson thinks that the AUMF provides the authority, I’m somewhat skeptical of the argument. To continue to detain someone under the AUMF, one would have to show that the person “planned, authorized, committed, or aided the terrorist attacks” on 9/11, or harbored those that did, “in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
So at that point, if you can’t prosecute someone and show that they committed an offense, it is unlikely that that person would have been involved in 9/11, except in the most tenuous fashion.
However, if the person is being held as a POW, then the person can be detained as long as hostilities continue. But traditionally, once hostilities end, detained combatants are repatriated to their home countries, regardless of whether they would be a continuing threat. The question we have is when do hostilities end? And how do you determine that hostilities have ended versus a non-state actor? That’s a much more ambiguous, and easier legal standard to meet.