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The Defense Bill and Indefinite Detention

The Defense Bill and Indefinite Detention December 22, 2011

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.

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