Military Detention After a Commission Acquittal: The Government Responds in al-Nashiri

Last week I noted that al-Nashiri has moved for an order compelling the government to state whether it would remand him to military detention for the duration of hostilities in the event of an acquittal.  The government's response brief is now available here.  The lead argument is that the issue is beyond the competence of the commission.  But the brief does go on to affirm the theoretical availability of a post-acquittal military detention option: "Should the accused be acquitted following a trial by military commission, the government could, as a legal matter, continue to detain the accused during hostilities pursuant to the AUMF if it establishes by a preponderance of the evidence that the accused was part of or substantially supported al Qaeda, the Taliban, or associated forces.” (p.6).  The brief concludes by noting that in any event it is not possible at this stage to say what the government might wish to do with al-Nashiri in the event of an acquittal at some point in the future.  Also notable: the brief in footnote 4 cites to this post from last week, in which Haridimos Thravalos discussed past examples relating to continued detention after acquittal.