Yes, that's just what it sounds like. The president has the power to detain someone even after they have been tried and acquitted. It's a power that Defense Department General Counsel Jeh Johnson suggested the American president holds. Spencer Ackerman, reporting from yesterday's Senate Armed Services Committee hearing on military commissions, has the details:
Johnson said that "as a matter of legal authority," the administration’s powers to detain someone under the law of war don’t expire for a detainee after he’s acquitted in court. "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. If an administration review panel "determines this person is a security threat" and "for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone" under "law of war authority" as granted by the September 2001 Authorization to Use Military Force, Johnson said. And beyond that source of authority "we have the authority in the first place." [my emphasis]
Acquitted and indefinitely detained on the executive's say-so. That doesn't really sound like the kind of American justice we learned about in civics class, unless that class was taught by John Yoo. Spencer also has the response from the ACLU to that idea:
Jeh Johnson’s response is just the latest example of the chaotic debate within the Obama Administration on the question of whether the detainees can continue to be held without charge. Shortly before Johnson had his exchange with Senator Martinez, the Justice Department witness David Kris flagged the Supreme Court’s opinion that detention authority under the nearly eight-year old AUMF [Authorization to Use Military Force, passed by Congress in September 2001] "may run out." And in remarkable testimony, the Justice Department witness testified that the Constitution may apply to the military commissions–-which raises the obvious question of whether the Justice Department also believes that the Constitution applies to people being imprisoned indefinitely without charge. It would be a ridiculous position to say that the Constitution applies when a person is put on trial, but not when that person sits in prison without trial–-or after being found innocent at trial. It is time for the the Administration to state that it cannot or will not continue to hold the detainees indefinitely without charge.
Now would be a good time for the administration to make that statement, and to assure the nation that this president is making any kind of unitary executive claims to either indefinite detention or to presidential post-acquittal detention power. Congress is in the process of holding hearings to determine how to proceed with legally processing the Guantanamo detainees, a thorny issue, but one that really should not be solved by executive decree on indefinite detentions. In addition to the Senate hearing yesterday, Rep. Jerrold Nadler is holding one today. Via Glenn (whose post on this issue is a must read, as usual), Nadler is skeptical of what he's heard so far:
"What bothers me is that they seem to be saying, 'Some people we have good enough evidence against, so we'll give them a fair trial. Some people the evidence is not so good, so we'll give them a less fair trial. We'll give them just enough due process to ensure a conviction because we know they're guilty. That's not a fair trial, that's a show trial," Mr. Nadler said.
The administration is approaching this issue not from a strictly rule of law point of view, but from a far too political point of view--convictions must be obtained, and they need to find a way to get those convictions, giving "just enough due process to ensure a conviction." And even if that conviction isn't secured, even if the detainee is acquitted, hold them indefinitely anyway. That's one solution, but it's not the right one, it's not the American one.
