Which means, I don’t have to have the scales fall from my eyes over the President’s decision to claim “post-acquittal detention power.” To be sure, I agree with Mark Kleiman (no, that is not a typo) that we can keep prisoners of war for as long as necessary, but that doesn’t change the fact that the Obama Administration is essentially going to engage in show trials when it comes to a lot of the detainees affected by its most recent decision on detainee policy. In the strictest sense, the legal status of the detainees is affected by whether they are found guilty or not-guilty in these trials, but as Kleiman writes, if someone has engaged in warfare against the United States, that person “should be held as long as the conflict lasts, even if that turns out to be forever.” So irrespective of the outcome of a trial, the defendant will remain in prison, and that will mean that many of those trials are going to have no effect whatsoever on the lives of the defendants in question. And that means that the Obama Administration’s guarantee of a fair trial or due process for these defendants is utterly meaningless.
Glenn Greenwald properly hits on this point:
. . . 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.
[. . .]
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.
[. . .]
Show trials are exactly what the Obama administration is planning. In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That’s clearly the Obama view as well, but he’s creating an elaborate, multi-layered, and purely discretionary “justice system” that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded. And for those who — to justify what Obama is doing — make the not unreasonable point that Bush left Obama with a difficult quandary at Guantanamo, how will that excuse apply when these new detention powers are applied not only to existing Guantanamo detainees but to future (i.e., not-yet-abducted) detainees as well?
Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee. That’s one of those propositions that ought to be too self-evident to need stating.
Again, along with Kleiman, I agree with the substance of the Obama Administration’s decision. But I also agree with Greenwald and Michael Goldfarb that in trying to get what I perceive to be the right result, the Administration is indeed trying to have its cake and eat it too.
And there is another point worth mentioning here: It looks like Dick Cheney was right. Despite Candidate Obama’s promises, President Obama does not have, and never had any intention whatsoever to give up the powers of the “Imperial Presidency.”
UPDATE: A reply to Mark Kleiman.