Holder has now stated that he’s convinced the upcoming trial of Khalid Sheikh Mohammed will find him guilty—but if the jury disagrees, the administration is willing to keep holding him indefinitely.
That’s just all kinds of wrong. The whole point of a trial is that if we find someone not guilty, he goes free, not that the government can turn around and hold them anyway.
I fully realize some of the information against Mohammed may be torture-based and therefore inadmissible. Too bad, so sad.
And I realize if he did get off and won his freedom, Obama would be pilloried mercilessly by the right. But so what? He’s already being pilloried for giving him any sort of trial; the people who think he’s the socialist agent of Satan, love child of Malcom X and Muslim sleeper agent aren’t going to vote for him no matter what he does.
And quite simply, this ain’t the way America’s supposed to roll.

According to Christian Science Monitor, our government is still refusing to let the Uighurs we’ve held at Guantanamo into this country.
A lot of the debate seems to be around whether the courts can compel the executive and legislative branches do it, but that’s a sham: The government shouldn’t have to be compelled. We locked them up (and are still keeping them locked up, though in pleasanter conditions than usual at Gitmo), we acknowledge their innocent and we can’t send them home to China (persecution would be their fate)—I can’t imagine why Congress and the White House are balking.
OK, I can imagine it: There’s a lot of people who will freak out at the thought of Evil Islamofascist Terrorists Loose In America, even if the Uighurs are nothing of the kind. And despite the fact people who thought that way have gotten their butts kicked in the last two elections, Washington still seems obsessed with how they feel.
But that’s still no excuse.

My column this week discussed Obama’s plans to ask Congress for a legal authorization for preventive detention. Now Glenn Greenwald reports that Obama has opted instead to claim the powers Bush asserted to do it without a special law (though with slightly different rationale).
Greenwald’s conclusion is that this is a very small victory, but a victory, preferable to having the concept of preventive detention built into our law.

From The Washington Independent :

“Defense Department General Counsel Jeh Johnson moved the Obama administration into new territory from a civil liberties perspective. Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, 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.” ”

I find the idea of locking someone up who’s been declared not guilty (or even guilty but not with a big enough sentence to suit Obama) truly horrifying. It’s unjust in itself, and I can’t help thinking this is one of those principles that could easily lead us down the slippery slope: The next kidnapper, rapist, murderer or drug-dealer who gets found not guilty, hey, why not just lock him up anyway? Sure, at this point it’s only the president who can authorize this, but if the principle of post-trial detention becomes accepted, it would be very tempting to a lot of people in law enforcement. I’ve read of a few cases where prosecutors have argued against releasing an innocent man–proven so by DNA evidence–on the grounds that some technical T hasn’t been crossed or that there’s no law requiring the man be released (and if you just release people because they’re innocent, there could be chaos!). I don’t understand the mindset, but giving the authorities more power to lock people up, even without evidence, is not a good thing.