WASHINGTON -- The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.
Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.
Like the Bush administration, the Obama administration argues that the legal basis for indefinite detention of aliens it considers dangerous is separate from war-crimes prosecutions. Officials say that the laws of war allow indefinite detention to prevent aliens from committing warlike acts in future, while prosecution by military commission aims to punish them for war crimes committed in the past.
Mr. Johnson said such prisoners held without trial would receive "some form of periodic review" that could lead to their release.
Sen. Lindsey Graham of South Carolina, a leading Republican on detainee policy, approved. "Some of them will be able to get out of jail because they've rehabilitated themselves and some of them may in fact die in jail," Mr. Graham said. But "I don't want to put people in a dark hole forever" simply "because somebody like Dick Cheney, or you fill in the blank with a politician, said so."
Also at the hearing, Obama administration officials differed with the Navy's senior uniformed lawyer over whether coerced statements should be used to convict Guantanamo defendants.
David Kris, head of the Justice Department's National Security Division, warned that federal courts might reverse convictions in military commissions if they were based on coerced statements.
Vice Adm. Bruce MacDonald, giving his independent opinion as the Navy's judge advocate general, testified that the standard should be whether a statement was "reliable," rather than whether it was coerced.
The question could be central to whether military-commission convictions stand up. Military prosecutors have said that involuntary statements make up the lion's share of evidence against detainees.
Congress is considering several proposals for trying Guantanamo detainees. The issue is one of several administration officials are struggling to resolve so they can meet President Barack Obama's commitment to close the Guantanamo prison by January.
While Mr. Obama wants to continue in modified form the commissions conceived under former President George W. Bush, officials said the administration favors an expiration date for the experiment unless reauthorized by Congress.
After some trials are held, "a fresh look" could be useful, Mr. Kris said.
The offshore prison holds about 229 detainees. The administration plans to release some prisoners, while others could be tried in federal court, by military commission or held indefinitely without trial.
Some House Democrats say the limited number of additional protections for defendants the administration has proposed don't go far enough.
Rep. Jerrold Nadler (D., N.Y.), who has scheduled a Wednesday hearing on military commissions before the House Judiciary subcommittee he heads, questioned the administration's plan to allot prisoners to federal courts, military commissions or indefinite detention.
"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," Mr. Nadler said.
