Obama’s Indefinite Detention Powers

Does the president have the authority to imprison anyone he says is a terrorist?

Do you see a problem with a law that authorizes indefinite military detention of anyone the president identifies as an enemy of the state? For President Obama, the problem is clear: The law does not give him enough discretion. 

Obama has threatened to veto the National Defense Authorization Act if the final version includes a provision approved by the Senate last week that requires military detention of some terrorism suspects. Obama, like his predecessor, wants the leeway to keep them in civilian custody, and maybe even give them a trial, if he so chooses. Those of us who are not the president are apt to be more concerned about the unchecked power the bill gives him to lock us up and throw away the key. 

Defenders of the bill's detention provisions say they merely codify powers granted by the Authorization for Use of Military Force (AUMF) that Congress approved after the September 11 terrorist attacks. But unlike the AUMF, Section 1031 of the National Defense Authorization Act explicitly "affirms" the legality of military detention "without trial." Furthermore, it says such treatment is permitted not only for "a person who planned, authorized, committed, or aided the terrorist attacks" or who "harbored those responsible" (language that echoes the AUMF) but also for anyone who joins or supports Al Qaeda, the Taliban, or "associated forces"—a much wider net. 

Section 1032 of the bill creates a presumption in favor of military detention for a member of Al Qaeda or an allied organization who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners." But it says "the requirement to detain a person in military custody under this section does not extend to citizens of the United States."

Taken together, these two sections mean military detention is authorized but not required for U.S. citizens. As Sen. Lindsey Graham (R-S.C.), a leading supporter of the bill, put it on the Senate floor last month, "1032, the military custody provision…doesn't apply to American citizens. 1031, the statement of authority to detain, does apply to American citizens, and it designates the world as the battlefield, including the homeland."

In short, the bill asserts the president's power to snatch anyone from anywhere, including a U.S. citizen on U.S. soil, and confine him in a military prison without charge until the end of a perpetual, worldwide war against an amorphous enemy. Senators from both parties who were alarmed at that prospect tried to remove the detention provisions, but the most they could achieve was an amendment saying the bill does not "limit or expand" the president's powers under the AUMF or "affect existing law or authorities" regarding detention of people "captured or arrested in the United States."

According to its sponsor, Sen. Dianne Feinstein (D-Calif.), the amendment was intended to "declare a truce" between those who say the detention power described by Graham already exists and those who disagree. Feinstein said the amendment "leaves it to the courts to decide."

So far the government has not been eager to test the constitutionality of its detention policies. In 2004 the Supreme Court said due process required that a U.S. citizen captured on the battlefield in Afghanistan and held as an enemy combatant be given "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The Bush administration let him go instead. In the two cases where the Pentagon took charge of terrorism suspects arrested in the United States, the government likewise avoided a definitive judicial resolution, transferring them back to civilian custody before the Supreme Court had a chance to rule on their treatment.

In any case, the Feinstein amendment (which passed almost unanimously) represents an astonishing abdication of legislative responsibility. The courts should be deciding the constitutionality of the detention policy established by Congress, not sifting through deliberately ambiguous statutory language to figure out what that policy is.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

© Copyright 2011 by Creators Syndicate Inc.

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  • Eduard van Haalen||

    "an astonishing abdication of legislative responsibility"

    What else is new?

    "Some of us want to detain American citizens without trial; others of us do not. Well, let's agree to disagree and let the courts decide."

  • The Angry RPh||

    Because, you know, the courts have always been a friend of the constitution.

  • sarcasmic||

    The job of the courts is to defend the law from friends of the constitution.

  • ||

    Pretty much everything federal circuit court has become an insatiable clusterfuck. Decent Supreme Court rulings are only ever achieved by a slim majority, and that's even with shitty logic and exceptions, and even that's slipping away. I honestly think secession might be the only way out of the shitter at some point.

  • ghost of Abe Lincoln||

    I honestly think secession might be the only way out of the shitter at some point.

    How'd that work out the last time around?

  • Eduard van Haalen||

    Secession to defend freedom would be different from secession to defend slavery. But I don't think it would work, thanks to folks like you, Abe. So thanks for that.

  • invisible furry hand||

    Secession to defend freedom would be in 1776 was different from secessionto defend slavery.


  • ||

    Only because the secessionizers won.

  • sarcasmic||

    If Texas announced plans to secede the state's population would quadruple in a week.

  • Cal||

    If Texas announced plans to secede, as a non-Texan I'd ask that the feds do nothing to stop it. Good riddance.

  • NotSure||

    You live by the sword you die by it. The American government may think they will forever be the most powerful, they will not. By killing and snatching anyone they want, anywhere in the world, they are creating so many potential enemies that it is almost inevitable that more future atrocities will occur in America.

  • ||

    I'm not sure what I think of this bill, but what exactly makes you think that those inclined to commit future atrocities in America will be particularly inclined to observe the niceties of U.S. policy precedent?

  • NotSure||

    What I meant is that by targeting people and countries all over the world, with ever less constraint, you will create an ever growing list of enemies. Not all people want to attack America because of its supposed freedom, it is old fashioned revenge as well.

  • sarcasmic||

    You mean that if you poke a dog with a stick again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again that it might jump up rip your face off?

    Dude! Now way!

  • Realist||

    NotSure is correct.

  • NotSure||

    You give government the power, it will in the end abuse it.

  • Live Free or Diet||

    Give the government an abusive power and any use of it is abuse. Just the fact that it could be used is abuse.

  • The Left||

    Do you see a problem with a law that authorizes indefinite military detention of anyone the president identifies as an enemy of the state? For President Obama, the problem is clear: The law does not give him enough discretion.

    It's okay when the right people are in charge!

  • The Angry RPh||

    If you haven't done anything wrong, you have nothing to worry about.

  • sarcasmic||

    Stop resisting!
    *whap* *whap*
    Don't make me hurt you!
    *whap* *whap*
    I said stop resisting!
    *whap* *whap* *whap*
    Aw fuck it.

  • invisible furry hand||

    Do you really want to hurt me? Do you really want to make me cry?

  • ||

    Unfortunately belonging to a different political party is considered a wrong nowadays. Wasn't it Obama who said we will punish those who vote against us or something like that.

  • newshutz||

    top men!

  • #||

    "It's okay when the right people are in charge!"

    It will be interesting to see the Left's reaction when the next republican president continues Obama's/Bush's policies.

  • Eduard van Haalen||

    It will herald the Dark Night of Fascism. Also, the Koch Brothers and the Powell Memorandum. And Halliburton. And Florida 2000. And Tea Party Terrorism.

  • HermanLame||

    Don't you mean when the LEFT people are in charge?

  • ||

    God, when are the "big statesman" Republicans going to get their sorry asses voted out for replacement by constitutionalists? Lindsey fucking Graham.

  • NotSure||

    Never, because Americans (left and right) are by a very large majority big statist fans.

  • invisible furry hand||

    hey most people are, especially when you scare them with the bogeyman du jour. It's a lonely life as a libertarian...

  • Barack Obama||

    Some say that you should go through life all alone, with no one and nothing to depend on for support. Well, we will never go back to the failure of past policies.

  • P.S.||

    Let me be clear.

    Some say that, "Some say that."

  • invisible furry hand||

    Some say that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. Some say that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. Well, I'm here to say they are wrong.
  • WTF||


  • sarcasmic||

    I used to support a big government like a good little product of the public school system, until I was in a position where I needed help.
    That was when I discovered that those people who supposedly have my best interest at heart couldn't give a shit if I was alive or dead.
    They say a liberal is a conservative who has never been mugged.
    I'd say a statist is a libertarian who has never been in need of social assistance.

  • invisible furry hand||

    your might be a slightly idiosyncratic reaction - most statists would be squealing for more, better, hopier government in those circumstances. Experience is an inconsistent teacher, it seems.

  • sarcasmic||

    I didn't think of it that way, but you're probably right.

  • The Angry RPh||

    Yeah, whichever agency/agencies you were dealing with just needed a bigger budget. That's all.

  • ||

    We need a powerful stronghold. A big state, like Texas. At all possible?

  • Al DeWay||

    The courts should be deciding the constitutionality of the detention policy established by Congress, not sifting through deliberately ambiguous statutory language to figure out what that policy is.

    We'll let the courts determine that, too.

  • ||

    The courts should be deciding the constitutionality of the detention policy established by Congress

    It would be nice if Congress took a stab at it first.

  • ||

    No one can challage the law unless they have standing, right? When someone does get detained under the law, and wants to challange their detention, can they even take it to a civilian court?

  • jbecan||

    Ron frickin' Paul!

  • ||

    Hey, dozens of people in my neighborhood are Paul supporters. I bet that's pretty good by general standards for the average town, eh?

  • sarcasmic||

    Chubby chaser special in queue, waiting for links.

    John's gonna get a chubby for sure!

  • Chub Hub||

    Is that like getting a swirly?

  • Eduard van Haalen||

    It's things like this that encourage judicial activism. Judges see that Congress is irresponsible, and is actually inviting judicial intervention. So courts take Congress up on the invitation. Keep that in mind next time Graham or his stooges complain about judicial activism. They are among the strongest enablers of judicial activism with their buck-passing.

  • ||

    Let me be honest. I'm a bit up in the air about this bill. From what I can tell, it seems to me that this language is ostensibly intended to assign the right to hold prisoners of war for the duration of the hostilities. Is that right? If so, that hardly seems like a novel extension of government power. The government isn't going to adopt a "catch-and-release" or a "serve-a-warrant" policy in military conflict. It never has. And I doubt anyone here has much of an appetite for a "take-no-prisoners" policy. Now, like I said, I might be misunderstanding the bill. Or perhaps the bill is just really badly written to that end. Am I missing something?

  • ||

    Yeah, you are. Its not a directive to hold prisoners of war. Its a directive to hold anyone they damn well please.

    Prisoners of war are (a) soldiers of a hostile nation (b) captured during a declared war. We can argue about whether (b) applies in this day and age, but (a) certainly doesn't.

  • ||

    This is what happens when war becomes a prefix. War on drugs, war on crime, war on domestic violence, war on the quality of your neighbors front lawn.

    What the odds that this law will be used for narco-terrorist and enviromental terrorist?

  • ||

    With all due respect, lots of luck trying to convince people that it's a grave danger to our rights and freedoms if we treat the guys shooting at our troops as...enemy soldiers.

  • The Ingenious Hidalgo||

    Any moment now Tony's going to show up to tell us that if a republican were president, detentions would be even indefiniter.

  • Tony||

    The difference is that my wars are the good ones, while your wars are the bad ones.

  • ||

    Even when they're the same wars, dammit!

  • invisible furry hand||

    but less hopier

  • Homeland Security since 1492||

    The agricultural city-State’s Indefinite Detention Powers

    Do city-Statists have the power to imprison anyone they say is a "tresspassing" Non-State society gamboler?

    If you acquiesce to the city-Statist violence to protect your big-government Land enTITLEments, expect it may be turned on you sometime.

    The agricultural city-State is always externally invasive AND internally repressive.

  • ||

    and thats why all societies collapse but which would you rather have a city state that provides long enough periods of calm so that societies may grow and create and learn or a world in which everyone survives only for themselves and never works with others to improve themselves as a society much as a city-state allows in those few years between the rise and fall of said society.

  • All societies do NOT collapse||

    All city-States (civilizations) collapse from internal rot, but the peoples of the Gayanashagowa didn't collapse.

    They were mass murdered by invasion.

  • ||

    Thats jsut downright scary when you think about it dude.


  • ||

    as god reclamation to are chief of staff remove pull back are military and so ordered for god himself will lift that burden

  • Gerholdt||

    He clearly wants to follow in the footsteps of his idol, the Great Hypocrite Lincoln, who suspended habeus corpus and introduced military conscription and the income tax.

  • Alexander Thesoso||

    The title of this article is a question.
    Sadly, the answer is simply: "Yes".

  • first||

    Welcome along Stasha, a petite young beauty who, lucky for us, is a self proclaimed exhibitionist!

    Stasha was born in the Ukraine but grew up in the beautiful city of Prague in the Czech Republic. With her doll-like features and perfect proportions the camera just loves Stasha. Petter Hegre described her sleek, graceful form as being like ‘a lazy cat on a hot summer day’!

    Stasha loves to eat juicy, grilled prawns with her fingers and another love in her life is her little, white car with tinted windows, She is very proud of her car!

    Stasha may look innocent but she knows for sure the effect she has on men – so watch out! You have been warned!

  • jackets||


  • Bradley Strider||

    Liberalism, ladies and gentlemen.


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