NEW YORK (IPS) — Lawmakers and human rights advocates are questioning the assertion by the administration of President Barack Obama that Guantanamo terror suspects could be imprisoned indefinitely even if they are found not guilty by a U.S. court.

A Guantánamo detainee, center, is escorted by U.S. military personnel in this May 15, 2007 photo.  AP

That assertion was made at a Congressional hearing this week by Jeh Johnson, the Defense Department’s chief lawyer. He said that releasing a detainee who has been tried and acquitted was “a policy decision” that would be made by officials based on whether they thought the prisoner posed a future threat.
The laws of war allow indefinite detention to prevent aliens from committing warlike acts in the future, while prosecution by military commission aims to punish them for war crimes committed in the past, he said.

But Rep. Jerrold Nadler, the New York Democrat who chairs the House committee that convened the hearing, was clearly unsatisfied by Johnson’s claim.

“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,” Nadler said.

Johnson expressed a similar position during a Senate hearing this week.

“And we’ve gone through our review period and we’ve made sure through the assessment the person is a security threat… I think it’s our view that we would have the ability to detain that person,” Johnson told Senate lawmakers.

The hearing before the Senate’s Armed Services Committee also explored the issue of detainee rights and particularly the use of coerced evidence during the Military Commission trials of terror suspects.

The Navy’s top uniformed lawyer, Vice Adm. Bruce MacDonald, told the senators that military judges are currently trying to resolve the fundamental due process issue of how to evaluate battlefield evidence.

He cited the example of a confession ”taken at the point of a rifle when a soldier goes in and breaks down the door, and takes a statement from a detainee” in an ”inherently coercive environment.” He urged the senators to write guidelines for military judges to consider on how to evaluate whether to admit the captive’s confession at trial.

He suggested that such confessions should be reviewed not in the context of whether they were obtained through coercion but rather whether they were “reliable.”

But Ben Wizner, an attorney for the American Civil Liberties Union (ACLU), takes issue with that view. He told IPS, “The evidence military prosecutors have was not obtained on any battlefield. It was obtained in air-conditioned trailers at Guantanamo Bay. And it was gathered by military investigators. This is a total red herring.”

He added, “The problem is not where the evidence was gathered but how it was gathered. Everything we know suggests it was obtained through very harsh and inhuman interrogation techniques that violate the Geneva Conventions. That was the approach of the Bush administration. Now the Obama administration is asking Congress to make it legal, ex post facto.”

Coerced confessions would be inadmissible as evidence in U.S. civilian courts, and admissible in Military Commissions only if Congress enacts the types of new guidelines suggested by Admiral McDonald.

The issue of detainee rights took on increased importance at the House and Senate hearings in light of the Obama administration’s preference for trying terror suspects in U.S. civilian courts and its objective of creating a new structure for the Bush-era military commissions.

Senator Lindsey Graham, Republican of South Carolina, said detainees convicted by a commission could appeal their verdicts to civilian courts, suggesting that any proposal should comply with the standards of those courts.

At the hearing, senators and Obama administration officials seemed to agree on most of the provisions to be included in the new commissions, which would replace those first introduced by the Bush administration. The changes would be intended to withstand legal challenges and bolster the credibility of the tribunals domestically and overseas.

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.

Many legal scholars and virtually all human rights advocates say the military commissions are too deeply flawed to be fixed.

Congress is considering several proposals for trying Guantanamo detainees. The issue is one of several that administration officials are struggling to resolve so they can meet President Barack Obama’s commitment to close the Guantanamo prison by January.

The offshore prison holds about 229 detainees.

During the Senate hearing, one administration witness posed the possibility that the Guantanamo detention center might not be closed by January 2010 because of the complexity of processing this many detainees for trial, release or continued detention.

Prof. Peter Shane of the Ohio State University law school discussed that issue with IPS. He argued against both the constitutionality and wisdom of indefinite detention for suspected terrorists.

He said, “If the United States has custody of people too dangerous to release, but not properly subject to criminal trial, the correct approach is to seek congressional authority to hold such persons for the duration of the conflict against al Qaeda and the Taliban.”

“Anyone potentially subject to detention on the equivalent of POW grounds should be afforded strict procedural protections to insure fundamental fairness in the determination of enemy combatant status. The statute granting such authority should have a 24-month sunset to insure close Congressional review before any detention is prolonged beyond the additional two years thus granted,” he said, adding:

“The president promised during his campaign to close Guantanamo promptly and to abandon the Bush administration’s unilateralism in dealing with national security issues. If both promises cannot be kept, it is the first that ought to be broken.”