The Obama Administration is looking more and more like the Bush Administration every day when it comes to the policy of holding prisoners indefinitely, without trial, or even after a trial and an acquittal.
Obama himself is already on record favoring indefinite detention of some prisoners.
"We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country," Obama said in May. He alluded to the problem of trying prisoners who were coerced into testifying against themselves. "Even when this process is complete," he said, "there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States."
Now the chief lawyer at the Pentagon has expanded the prospects of indefinite detention to include those who actually have already been prosecuted and have even been found not guilty.
Pentagon General Counsel Jeh Johnson told the Senate on Tuesday that this was a "policy decision officials would make based on their estimate of whether the prisoner posed a future threat." Johnson said that the legality of this position "was never tested."
Well, not exactly. The Supreme Court ruled in the Boumediene case last June that the judiciary has the authority to order the release of an "individual unlawfully detained."
And holding a prisoner after he's been found not guilty is the very definition of "unlawfully detained."
Justice Anthony Kennedy was the author of the court's 5-4 decision, and he minced no words. Our security depends not only on the skill of our intelligence agencies and the might of our Armed Forces, he wrote. It also depends on "fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers." He added: "Few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."
The general counsel of the Pentagon ought to bone up on the Supreme Court's decision. As should Obama.
Johnson did acknowledge that his view happened to be the same as the Bush Administration's.
And that's a huge problem.