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Acquitted “Terrorists” and the Court of Public Opinion

Now that judges are calling for the release of Guantanamo detainees, what is going to happen to those who are acquitted? Moreover, what makes a detainee a terrorist? The answer so far has been this: the government saying so.

July 31, 2009

Cross-posted on Balkinization

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