by Glenn Greenwald
Salon.com

Spencer Ackerman yesterday attended a Senate hearing at which the DOD's General Counsel, Jeh Johnson, testified. As Ackerman highlighted, Johnson actually said that even for those detainees to whom the Obama administration deigns to give a real trial in a real court, the President has the power to continue to imprison them indefinitely even if they are acquitted at their trial. About this assertion of "presidential post-acquittal detention power" -- an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties -- Ackerman wrote, with some understatement, that it "moved the Obama administration into new territory from a civil liberties perspective."

Law professor Jonathan Turley was more blunt: "The Obama Administration continues its retention and expansion of abusive Bush policies now clearly Obama policies on indefinite detention."

In June, Robert Gibbs was repeatedly asked by ABC News' Jake Tapper whether accused Terrorists who were given a trial and were acquitted would be released as a result of the acquittal, but Gibbs -- amazingly -- refused to make that commitment. But this is the first time an Obama official has affirmatively stated that they have the "post-acquittal detention" power (and, to my knowledge, the Bush administration never claimed the power to detain someone even if they were acquitted).

All of this underscores what has clearly emerged as the core "principle" of Obama justice when it comes to accused Terrorists -- namely, "due process" is pure window dressing with only one goal: to ensure that anyone the President wants to keep imprisoned will remain in prison. They'll create various procedures to prettify the process, but the outcome is always the same -- ongoing detention for as long as the President dictates. This is how I described it when Obama first unveiled his proposal of preventive detention:

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

After yesterday, we have to add an even more extreme prong to this policy: if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we'll still just keep them in prison anyway by presidential decree. That added step renders my criticism of Obama's conception of "justice" even more applicable:

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.


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