War on Terror

Obama Promises Not to Use Military Detention for U.S. Citizens—I Think

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When he signed the National Defense Authorization Act on Saturday, President Obama issued a statement that addresses its controversial provisions regarding his authority to detain terrorism suspects (emphasis added):

Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF)….This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." Second, under section 1021(e), the bill may not be construed to affect any "existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Although it's true that the Supreme Court has interpreted the AUMF as implicitly approving certain detention powers, the extent of those powers remains unclear. Since the NDAA, unlike the AUMF, explicitly mentions detention "without trial" and broadens the category of people subject to "military force," it's not true that it "breaks no new ground." Notwithstanding the assurances cited by Obama, the NDAA favors a broad reading of the detention powers supposedly granted by the AUMF.

The promise in bold is interesting because it does not distinguish between American citizens captured on a foreign battlefield and American citizens arrested in the United States. In the 2004 case Hamdi v. Rumsfeld, the Supreme Court approved the indefinite military detention of an American citizen captured on the battlefield in Afghanistan, although it said due process required that he be given "a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." It has not addressed the question of whether this detention authority extends to terrorism suspects arrested on U.S. soil or whether citizenship matters in that context. Obama therefore is saying he will not use a detention power that has been upheld by the Supreme Court while reserving the possibility that he will use one (relating to noncitizens arrested here) that has not. He does not actually say that indefinite military detention of U.S. citizens is not authorized by the AUMF or that it is unconstitutional, although he does say that it "would break with our most important traditions and values." Unless Obama has some sneaky definitions of indefinite or trial in mind, he is committing to avoid treating U.S. citizens suspected of ties to terrorism the way the Bush administration treated Yasser Esam Hamdi and Jose Padilla.

Obama's plans for noncitizens linked to Al Qaeda are less clear:

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

Sen. Lindsey Graham (R-S.C.) and other supporters of this provision argue that terrorism suspects are "captured in the course of hostilities" no matter where they are found, because the battlefield in the War on Terror is the entire world, including the United States. Attorney General Eric Holder seems to agree with that view. Obama demands the discretion to treat noncitizens suspected of ties to Al Qaeda as prisoners of war or as criminal defendants, and he does not say whether the location or context of their arrest matters. He does say that in implementing the NDAA's detention provisions he will seek to "provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law." The flexibility Obama wants does not seem consistent with the clarity required by the rule of law.

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