Indefinite Detention: No Guilty Verdict Required

In her testimony before the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Judiciary Committee last week, Denny LeBoeuf, director of the ACLU’s John Adams Project, highlighted a number of the most egregious flaws in the military commissions system. LeBoeuf cited, among other things:

• the use of evidence obtained through coercion (in clear violation of the due process clause of the Constitution, the Geneva Conventions, and U.S. Military Law);
• the admission of hearsay evidence (inconsistent with international practice in numerous courts, including the International Criminal Tribunals for Rwanda and the Former Yugoslavia, and the International Criminal Court);
• the denial of the right to choose one’s own defense counsel (a right emphasized by the Supreme Court and granted even to defendants at Nuremberg.)

This testimony, and the evidence which supports it, offer an irrefutable condemnation of the Obama administration’s decision to revive the military commissions.

Yet even if the military commissions do go forward (as Defense Department General Counsel Jeh Johnson advocated in his own Congressional testimony last Tuesday), they are marred by an additional glaring flaw: Even if the Commissions do exonerate a defendant of all charges, the Obama administration has claimed the right to continue to imprison the defendant indefinitely. So even if a detainee’s case survives the use of coerced evidence, the admission of statements from a shadowy, unnamed source, and the lack of a properly selected defense attorney — even if the defendant is able to overcome these hurdles and demonstrate his innocence — the administration can continue to detain him, on the unsubstantiated grounds that he might “endanger the American people.”

Indeed, as President Obama announced in a speech on May 21, these detainees could be grouped with “all manner of dangerous and violent criminals” in federal supermax prisons.

This notion that individuals can be indefinitely detained, on the vague and unsubstantiated basis that they might pose a threat, renders the administration’s proposed changes to the military commissions completely useless. Although Johnson claimed in his testimony that the improved commissions would provide a “fully legitimate forum,” such “legitimacy” is pure window dressing so long as the President can detain whomever he wants to, regardless of the commissions’ outcome.

The Obama administration’s mistaken belief that it can legally detain individuals, even if they have been exonerated — albeit by critically flawed commissions — is completely contrary to President Obama’s asserted desire to break with the abuses of the Bush administration. If the president truly wants to disavow the mistakes of the past eight years, he must begin by trying these detainees in federal court, and respect the outcomes of those trials.