Top Pentagon lawyer Jeh Johnson informed the Senate Armed Services Committee today that the Obama Administration might decide to continue imprisoning detainees indefinitely, even if they were charged with a crime, tried and acquitted.
The new assertion of presidential authority is staggering. Previously the Bush Administration had held the detainees for years without trial, and claimed the right to hold them basically forever, which the Obama Administration endorsed. But trials were avoided for lack of evidence. President Obama had previously defended the release of detainees ordered to be let go by the courts by insisting there was nothing he could do after the court ruled.
Not so now, it seems, and the lack of evidence is no obstacle because even if the trial fails, the president can simply overrule the court and keep the innocent detainee anyhow. Johnson said the detainees held despite being found not guilty in court would be permitted “some form of periodic review,” though it was unclear how this would even theoretically work.
While the Bush Administration often struggled with their system of extralegal detention, the Obama Administration seems perfectly willing to make bizarre assertions as to their hopes for a future legal system. Last month they were openly talking about executing detainees to avoid messy trials. Now the trials themselves will be next to meaningless.
Rep. Jerrold Nadler (D – NY) expressed concern about the plan, saying “What bothers me is that they seem to be saying, ‘Some people we have good enough evidence against, so we’ll give them a fair trial. Some people the evidence is not so good, so we’ll give them a less fair trial. We’ll give them just enough due process to ensure a conviction because we know they’re guilty. That’s not a fair trial, that’s a show trial.”