Deborah Pearlstein debates the legality of post-acquittal detention:
The Administration’s litigating position is that there is an ongoing, non-international armed conflict (i.e. a conflict not between two states, but between the United States and the organization Al Qaeda); and that the 2001 [Authorization for Use of Military Force (AUMF)] passed by Congress gives it ongoing authority to subject certain individuals (just who is the central subject of litigation) to military detention until the end of the U.S.-v.-A.Q. conflict. There is nothing in the Geneva Conventions that would affirmatively authorize such detention. But neither is there anything in the Geneva Conventions that would squarely prohibit it (provided, as always, it’s subject to adequate procedures, humane treatment, etc.). If the Administration is right about the scope of the AUMF an interpretation that I believe is overbroad but that has so far been largely winning in the district courts then presumably the same logic about post-acquittal detention applies...
A.L. has more:
I think the true test of the Obama administration will be whether and under what circumstances it chooses to hold detainees based solely on their status as "combatants." Will it reserve this power in name only? Will it limit its use to people who, like Hamdi, were captured on the battlefield? Will it claim that its detention authority is limited to the duration of the wars in Afghanistan or Iraq, or to the never-ending "war on terror"? What sort of process will it afford detainees to challenge their designation as combatants? Will it seek Congressional approval for such detention or rely solely on executive order? If someone is acquitted of criminal charges under circumstances that make it clear that the jury did not believe he was a terrorist at all, will the Obama administration assert that he is a terrorist nonetheless?
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