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On May 21, 2009, President Obama gave a speech on Guantánamo detainees, saying that for certain people, we will need to have indefinite preventive detention.

This indefinite preventive detention would not be based on past or proven crims, but based on our government's determination that a detainee is dangerous.

Now the Defense Department has taken it one step further.  Guantánamo detainees who are acquitted by civil military courts may still be imprisoned indefinitely if the government determines that they pose a future danger.

Pentagon general counsel Jeh Johnson testified at a Senate hearing yesterday:

The question of what happens if there's an acquittal is an interesting question--we talk about that often within the administration.

 An "interesting question"?

It's an easy question in the civilian court system.  If there's an acquittal, the defendant is set free--O.J. Simpson, Michael Jackson, the LAPD cops who beat Rodney King . . .  Furture dangerousness is not a ground to continue to hold someone, much less indefinitely.

Johnson went on to say,

If, for some reason, [a detainee] is not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think it's our view that we would have the ability to detain that person.

 What legal authority?  This statement doesn't even make sense.  If someone is not convicted, then they don't serve a prison sentence at all.

Even for those convicted of capital crimes in this country--and for Guantanamo detainees, we are talking about people who are acquitted--only Texas and Oregon allow "future dangerousness" to play the critical role in whether an individual receives a death sentence, despite the fact that the practice is rejected by the psychiatric expert community as unreliable.

A study prepared by the Texas Defender Service that examined 155 capital cases where expert witnesses predicted that the defendant would be a future danger found they were wrong 95% of the time.

Indefinite preventive detention based on predictions of future dangerousness is on par with medieval trials by ordeal.  We would do just as welll to drop people in boiling water to see whether they float.

The American Psychiatric Association has stated since 1983 that

The unreliability of predictions of long-term future dangerousness is by now an established fact within the profession.

Expert testimony on future dangerousness has been deemed inadmissible by most every court in the country.

As someone who is being indefinitely punished via a secret "No-Fly List" and a 5+-year bar investigation--based on a determination by the government (in which I had no input) that I am somehow dangerous to fellow passengers or clients, I shiver at the notion that the United States should be able to preventively detain "people who would do us harm," especially when the government can't prove they violated any law(s)--all in order to keep us safe.  

A new system of indefinite preventive detention based on future dangerousness--for 229 human beings potentially acquitted of wrongdoing--is illegal and immoral.  

Originally posted to Jesselyn Radack on Wed Jul 08, 2009 at 05:55 AM PDT.

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