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Dec 22 2011

The Defense Bill and Indefinite Detention

There seems to be a disagreement between a couple of prominent commentators on whether the defense authorization bill passed last week does or does not allow for the indefinite detention of American citizens. Adam Server, writing at Mother Jones, says it doesn’t:

So what exactly does the bill do? It says that the president has to hold a foreign Al Qaeda suspect captured on US soil in military detention—except it leaves enough procedural loopholes that someone like convicted underwear bomber and Nigerian citizen Umar Abdulmutallab could actually go from capture to trial without ever being held by the military. It does not, contrary to what many media outlets have reported, authorize the president to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US. A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won’t be based on the authority in this bill.

So it’s simply not true, as the Guardian wrote yesterday, that the the bill “allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.”

Glenn Greenwald says the bill does allow it and he cites the language in the bill as evidence:

Section 1021 of the NDAA governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF.”  The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF  ”includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” With regard to those “covered individuals,” this is the power vested in the President by the next section, (c):

“Detention under the law of war without trial until the end of hostilities authorized by the Authorization to Use Military Force.”

It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention. It expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.” That is the very definition of “indefinite detention,” and the statute could not be clearer that it vests this power. Anyone claiming this bill does not codify indefinite detention should be forced to explain how they can claim that in light of this crystal clear provision.

It is true, as I’ve pointed out repeatedly, that both the Bush and Obama administrations have argued that the 2001 AUMF implicitly (i.e., silently) already vests the power of indefinite detention in the President, and post-9/11 deferential courts have largely accepted that view (just as the Bush DOJ argued that the 2001 AUMF implicitly (i.e., silently) allowed them to eavesdrop on Americans without the warrants required by law). That’s why the NDAA can state that nothing is intended to expand the 2001 AUMF while achieving exactly that: because the Executive and judicial interpretation being given to the 20o1 AUMF is already so much broader than its language provides.

But this is the first time this power of indefinite detention is being expressly codified by statute (there’s not a word about detention powers in the 2001 AUMF). Indeed, as the ACLU and HRW both pointed out, it’s the first time such powers are being codified in a statute since the McCarthy era Internal Security Act of 1950, about which I wrote yesterday.

Greenwald also argues that the language defining who can be held in this manner has been broadened considerably. The original 2001 AUMF allowed the president to detain “persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The new defense bill keeps that language but adds a second group, “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

Section (1) is basically a re-statement of the 2001 AUMF. But Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.” Those are extremely vague terms subject to wild and obvious levels of abuse (see what Law Professor Jonathan Hafetz told me in an interview last week about the dangers of those terms). This is a substantial statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama bin Laden dead, and with the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack) rendered inoperable.

I think Greenwald wins this one.

10 comments

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  1. 1
    nedchamplain

    The Justice Dept announced yesterday that Pres. Obama will issue a signing statement stating he will not obey those parts of the NDAA

  2. 2
    eric

    Ned, that’s not any real comfort. Any time he changes his mind or any future president could use this power. I don’t want a currently-nice-guy dictator; I don’t want anyone with dictatorial powers at all.

  3. 3
    anandine

    Ain’t it a bitch that with all that, he’s still the best candidate for president? Imagine Newt in the same position.

  4. 4
    Ed Brayton

    nedchamplain –

    The very thing that we hammered Bush for doing for 8 years. But I bet a whole bunch of Obama supporters will be all for it despite that. Because it ain’t what you do, it’s who is doing it.

  5. 5
    Jordan Genso

    Can someone explain to me the pros/cons of signing statements? I was not politically astute during the Bush Administration, so I don’t know why/how President Bush was hammered for it.

    My initial opinion is that President Obama’s signing statement is an action of no tangible value other than trying to keep public opinion on the side of being against those policies (and of course, in keeping public opinion in favor of the President even after he signs the bill with the bad policies in it). But if there are three options for President Obama in this situation (sign the bill; sign the bill with a signing statement; veto the bill), it appears as though he is doing the second best (and second worst) option. I would prefer he veto the bill, and will be critical of him signing it. But given that he is going to sign it, I would rather he include the signing statement than nothing at all.

    As I said though, I’m not very familiar with the pros/cons of signing statements, so maybe I’m missing something.

  6. 6
    rabbitscribe

    @ #5 Jordan

    Pros: None to speak of. In the wildly unlikely hypothetical example of, say, Congress passing a law designating the Speaker of the House as Commander in Chief of our Armed Forces, I suppose the President would be justified in declining to enforce that law. A signing statement is as good a way as any of letting us know.

    Cons: It’s a full-blown constitutional crisis just waiting to happen. The root of the problem, as is so often the case these days, is this absurd notion that the Executive is entitled to employ extraordinary wartime powers prosecuting the War on Terror. So Congress tells him, “Herp, you can’t just listen to any phone call you like.” And he replies in a signing statement, “Derp, I’m Commander in Chief and we’re at war!” and proceeds to spy on an Attorney General and prosecute him for monkeying around with hookers (see: Elliot Spitzer).

    The proper venue for determining the constitutionality of a law is, of course, the Federal judiciary. Unless and until the fellow in the fetching black mu-mu finds a law unconstitutional, the President is bound by oath to enforce it. This applies even to laws I personally believe to be shitty (see: DOMA) and needless to say, the War on Terror, the War on Drugs, the War on Poverty, and the War on Christmas don’t enter into the matter.

  7. 7
    wscott

    I’m not a fan of signing statements, to put it mildly. But it seems like there’s a distinction between ignoring a requirement that Congress has put on the Executive Branch (“you will”), vs. declining to exercise a power that Congress has authorized (“you may”). In the latter case, you essentially have the same as if Obama just signed it without comment, but never chosen to exercise that power; he’s just stating his intent up front. That said, I agree I’d prefer not to have to rely on the benevolence of the dictator.

    I do find it interesting that the language of the bill specifically requires an (alleged) tie to a specific terrorist organization, rather than just terrorism in general. The former is certainly open to abuse, but the former would seem to be much easier to abuse. Still don’t like it, but I guess I’m marginally less appalled.

  8. 8
    organon

    “There seems to be a disagreement between a couple of prominent commentators on whether the defense authorization bill passed last week does or does not allow for the indefinite detention of American citizens.”

    What I have encountered is almost no disagreement. Overwhelmingly the view seems to be that in fact the changes in language do not eliminate this and that the fundamental dangers remain. Not only Glenn Greenwald, but John Whitehead and other constitutional attorneys. Also, another thing that some attorneys have pointed out but almst no one is writing about is how this thing finds a way around judicial review, and thus any chance of challenging its constitutionality. This has to do with where do you find someone who is in a position of having “standing.” Citizen(s) held indefinitely by the military have no actual charges filed against them, no case in the court system, and no contact with an attorney (not to mention no phone calls or even a requirement to let your family know where you are or that you’re even being held). As I understand it, this thing is written brilliantly for any president who wishes to (or is pressured to) to implement it as pleased without concern for the constitutionality being challenged. I have encountered quite a number of writers who are normally outspoken to have been almost silent on this one. There has been enough from Glenn Greewald, John Whitehead, and any of a number of others, that writers could even choose to simply post links to any of the articles out there from such sources. The silencing effect is just one more thing that causes me much concern. I had intended to become silent myself once it’s signed into law, but eventually I realized the ethical responsibility to continue speaking out. I’ve enjoyed living a lifetime thus far with the benefits the Bill of Rights brings. If we remain silent, we take away from future generations these rights so crucial to living in freedom (or at least relative freedom). I agree wholeheartedly with everyone that it brings me no comfort that the president state that he will not abuse these. Once it goes into law, no future presidents will be under any obligation to not abuse it. The situation is seriously bad in what this puts into law. And it is compounded by sopa/pipa legislation. We cannot become informed via the mainstream media outlets. It is only through independent voices on the web that we tend to be able to find quality information wherein we can be informed citizens. Now the government will have the authority to shut sites down, in addition to authority to put any writers they see as a risk into permanent custody. Well, OK, only until terrorism comes to an end. I have committed myself to continue speaking out, in spite of the risks. Hopefully others will do the same. For the sake of future generations.

  9. 9
    juice

    But don’t you dare vote for Ron Paul.

  10. 10
    organon

    This is a presidential election where I find I cannot conscionably vote for any of the candidates. Efforts to protect our first ammendment rights, as well as putting it to use by speaking out, seem the only tenable course right now.

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