Don't Worry: The President Will Have Complete Discretion to Imprison People Without Trial


This week the Senate is considering a defense authorization bill that would explicitly allow indefinite military detention of terrorism suspects arrested on U.S. soil (or anywhere else), including American citizens. Sens. Carl Levin (D-Mich) and John McCain (R-Ariz.), who co-authored the provision, say it "offers balance in dealing with detainees." Writing in The Washington Post, Levin and McCain address critics who worry that the bill takes too much power away from the president:

The bill does not tie the administration's hands in deciding how best to handle a detainee. It is the executive branch that determines whether a detainee meets the criteria for military custody, under procedures that this legislation allows the executive branch to develop. Not only does the bill include a national security waiver [allowing terrorism suspects to be held in civilian custody], but it expressly authorizes the transfer of any military detainee to civilian custody for trial in the federal courts.

What about critics who are alarmed, rather than reassured, by the idea of letting the president lock up people he unliaterally identifies as enemies of the state and throw away the key? Levin and McCain do not have much to offer such skeptics, beyond saying that the bill applies to "a narrowly defined group of people—al-Qaeda terrorists who participate in planning or conducting attacks against us." But how do we know that the people whom the president decides to imprison without trial for as long as he feels like it really are Al Qaeda terrorists? Isn't that what trials are for?

The ACLU has more on the bill here. More on indefinite detention of terrorism suspects here.