By Matthew Rothschild on July 08, 2009

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.

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By Wendell Berry

Manifesto: The Mad Farmer Liberation Front

Love the quick profit, the annual raise,
vacation with pay. Want more 
of everything ready made. Be afraid 
to know your neighbors and to die.
And you will have a window in your head.
Not even your future will be a mystery 
any more. Your mind will be punched in a card 
and shut away in a little drawer.
When they want you to buy something 
they will call you. When they want you
to die for profit they will let you know. 
So, friends, every day do something
that won’t compute. Love the Lord. 
Love the world. Work for nothing. 
Take all that you have and be poor.
Love someone who does not deserve it. 
Denounce the government and embrace 
the flag. Hope to live in that free 
republic for which it stands. 
Give your approval to all you cannot
understand. Praise ignorance, for what man 
has not encountered he has not destroyed.
Ask the questions that have no answers. 
Invest in the millennium. Plant sequoias.
Say that your main crop is the forest
that you did not plant,
that you will not live to harvest.


Say that the leaves are harvested 
when they have rotted into the mold.
Call that profit. Prophesy such returns.
Put your faith in the two inches of humus 
that will build under the trees
every thousand years.
Listen to carrion—put your ear
close, and hear the faint chattering
of the songs that are to come. 
Expect the end of the world. Laugh. 
Laughter is immeasurable. Be joyful
though you have considered all the facts. 
So long as women do not go cheap 
for power, please women more than men.
Ask yourself: Will this satisfy 
a woman satisfied to bear a child?
Will this disturb the sleep 
of a woman near to giving birth? 
Go with your love to the fields.
Lie easy in the shade. Rest your head 
in her lap. Swear allegiance 
to what is nighest your thoughts.
As soon as the generals and the politicos 
can predict the motions of your mind, 
lose it. Leave it as a sign 
to mark the false trail, the way 
you didn’t go. Be like the fox 
who makes more tracks than necessary, 
some in the wrong direction.
Practice resurrection.

Wendell Berry is a poet, farmer, and environmentalist in Kentucky. This poem, first published in 1973, is reprinted by permission of the author and appears in his “New Collected Poems” (Counterpoint).

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