What will happen to Guantánamo detainees who are tried and acquitted?
This
question has now arisen in two consecutive Senate committee hearings on
the fate of the detainees. Three weeks ago, when Senator Martinez
(R-Fla) posed this question to Defense Department General Counsel Jeh
Johnson, Johnson responded that the U.S. could invoke the 2001
Authorization for Use of Military Force to continue to hold detainees
after they were acquitted. I wrote about this Alice-in-Wonderland
concept of justice here.
A somewhat different solution was posited in Tuesday’s hearing
of the Judiciary Committee’s Terrorism and Homeland Security
Subcommittee. When the minority witness, Michael Edney, raised the
specter of acquitted detainees being released on U.S. soil, other
witnesses (who were not from the administration) responded that the
Attorney General could invoke immigration law to detain these
individuals, indefinitely if need be, pending deportation. The Supreme
Court hasn’t signed off on that approach, but the witnesses’ testimony
gave Subcommittee Chairman Senator Cardin (D-MD) enough assurance to
declare that “terrorists are not going to be released into the United
States.” His statement echoed the sentiments of most of his fellow
members of Congress, who evidently believe this is the view of their
constituents.
Unfortunately, no one addressed this question: what makes an acquitted detainee a “terrorist”?
We
don’t generally refer to people who have been acquitted of criminal
charges as “criminals.” To be sure, people who commit crimes sometimes
escape conviction. But our default presumption is that an acquitted
person is exactly what the jurors pronounced him or her to be: “not
guilty.” That presumption should be even stronger here. Most Americans
are exceedingly unlikely to give the benefit of the doubt to people
accused of ties to Al Qaeda. If twelve people unanimously conclude that
there is insufficient evidence to convict an accused Al Qaeda supporter
of even the most tangential and vaguely worded terrorism offense (such
as “material support” for terrorism), what basis is there to consider
the person a terrorist?
Read the rest at Balkinization.