War on Terror

Indefinite Detention

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

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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 Barack Obama, the problem was clear: The law did not give him enough discretion.

In December, Obama signed the 2012 National Defense Authorization Act (NDAA), having dropped a veto threat after Congress added language promising that the law would not affect the FBI's "criminal enforcement and national security authorities." Obama, like his predecessor, wants the leeway to keep terrorism suspects 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 law's "affirmation" of his unchecked power to lock us up and throw away the key.

Defenders of the law's detention provisions say they merely acknowledge powers granted by the Authorization for Use of Military Force (AUMF) that Congress approved after the September 11 terrorist attacks. But unlike the AUMF, the NDAA 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. 

Another section of the bill creates a presumption in favor of military detention for a member of Al Qaeda or an allied organization who participates in planning or executing an attack or attempted attack. But it says that requirement "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, explained on the Senate floor in November, "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 law 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 law 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 said the detention power described by Graham already existed and those who disagreed. 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 Yaser Esam Hamdi, 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 deported him to Saudi Arabia 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. 

Senior Editor Jacob Sullum is a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

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63 responses to “Indefinite Detention

  1. I bet that many of the supporters who support such laws think that it really is only about killing Al Qaeda members. They fail to to see that this law can be used on others as well one day, even them.

    1. I bet that many of the supporters who support Gambol Lockdown think that it really is only about killing wild Injuns. They fail to to see that this law can be used on others as well one day, even them.

      1. Any abstract definition “property” that needs “government” aggression to protect it probably isn’t all that legitimate of “property.”

        1. and you’ll find that government aggression is the least of your worries.

          1. Gambolers will be shot!

            Survivors will be shot again!

          2. Casinos for billionaire chieftain Obama contributors, door slammed in face of newcomers.

  2. If you’ve done nothing wrong when your TEAM is in power, you have nothing to fear.

    1. Feinstein calling a “truce” is too funny for words. She didn’t want much of a truce when the other team was in charge and she had no responsibility.

  3. Fibertarians are for Gambol Lockdown, so why not the consequences of Gambol Lockdown?

    1. This Gambol Lockdown sounds suspiciously like our Purification Rundown…you’ll be hearing from our legal counsel fatboy.

    2. I move that the spam filters block the word gambol outright, and also any phonetic spelling when in close proximity to the word lockdown.

    3. Casinos for thee but not for them.

    4. Hears Stalinist Obama’s DHS say “see something, report it,” then spies on neighbors and reports suspicious activity to the TerrorKopShop.

  4. But doesn’t getting a srep close to unibersal health care cover a multitude of sins? How about ending the war in Iraq. How about not embarassing the country on the world stage by sounding like a moron? You should give Obama some slack.

    1. ? Universal Pollution, good.
      ? Universal Birth Defects, good.
      ? Universal Athsma, good.
      ? Universal Health Care for the victims, bad.

      BBC News | HEALTH | Pollution linked to birth defects
      http://news.bbc.co.uk/2/hi/health/1731902.stm

      1. is on the phone now with the EnviroKops making wild accusations.

      2. Look out private health outfits, the HealthPolice are on their way to smash and grab.

      1. I want you to have my baby John.

  5. In a word,no.Then again,I’m a guy who thinks the costitution still means something.I guess if you can tell people to buy a service,make companies give products for free or tell people what they can grow on their property I may be out of touch

  6. Excellent. Over 50% troll. That’s the sort of disruption I expect from you dimwits.

    1. Trolling = being confronted with the unintended consequences of our stupid philosophy. We Fibertarians don’t want to think about that!

      Mommy!

      1. Don’t troll me, moron. What would be the point of that?

        1. Some people just wanna watch the world troll…

      2. and eats them.

      3. …faux primitivist is an agent for the TaxExtractors.

  7. That actualyl does make a lot of sense dude.

    http://www.Gone-Anon.tk

  8. Just wait until we have a president declare everyone from the opposing party an enemy combatant, and detain them.

    1. They’ve come pretty close by claiming those who disagree with them may tend to be terrorist or are former military or etc etc…

  9. Feck this worthless gobshite basturd Obama. ANd feck all the steaming pile sof scrotal cheese who voted for this filth. Drink! Arse! Girls!

  10. This is a serious question, some people here have claimed that “rather” is also the gambol man, is that really true or simply an in house joke ?

      1. To clarify:

        “rather” is “White Indian”, and an inside joke. All at the same time.

        Query: Is Jason Godesky “rather”/”White Indian”?

        1. I noticed on another thread that White Injun used Shrike’s epithet “christfag” in one of his posts. I doubt White Injun is rather: they’re both nuts, but in different ways. White Injun seems to have this Asperger’s-like monomania and general autism, as evidenced by his posting the same handful of phrases and linking to the same articles ad nauseum. Rather’s just weird.

  11. You can blame it on Obama as much as you like, but the fact is it was the GOP who wanted it most.

    1. Obama is to blame.

      Republicans are to blame.

      Democrats are to blame.

      Those are not mutually exclusive facts. Now, what’s your fucking point?

  12. Glenn Beck had Allen West on a few weeks ago to talk about this. Beck is occasionally coherent and correct about some things, and he made his case for opposing this insane legislation (while, to my disappointment, he claimed to support al-Awlaki’s extra-judicial execution because it didn’t occur on American soil). West’s response was, essentially, that we need to have the right people in charge in order to assure that abuse of this power doesn’t happen. I facepalmed so hard I almost crashed my truck.

    How could anyone not be cynical to the point of paralysis about politics? That is the sort of authoritarian bullshit posturing that passes for earnest critical thinking in Congress.

    1. Actually, now that I think about it, that wasn’t West’s essential response. That was pretty much his verbatim response.

    2. Seriously, you were surprised by West’s response? Not me.

    3. I’m not much surprised by West’s response. I’m continually surprised at how many people think we just can’t survive without people like him to run our lives for us.

    4. I think now is the time to invoke the law against Santorum. If he is not a terrorist, let him scream alone in his cell and prove it.
      Ah, can’t prove he isn’t a terrorist – I thought so.

      AND I DON’T want to hear any bleeding heart right wingers whining about how the POTUS is using terrorism for politics – everybody knows the president always has the safety of the American public formost.

  13. In Israel there is no Constitution or Bill of Rights. Israeli governments have since the country’s inception done to Israeli citizens what the NDAA proponents want the NDAA to do to Americans.

    In fact in Israel both Jews and Arabs have are still held without charges or a trial for indefinite periods of time at the sole discretion of the authorities. Some of these detentions have been removed by the Israel Supreme court.

  14. 32 comments total
    6 from “rather”/ White Idiot/ whoever the annoying fuck with the ever changing handle is
    5 responses to “rather”/ White Idiot/ whoever the annoying fuck with the ever changing handle is
    1 anono-bot

    Sigh…

  15. The question was “Does the president have the power to imprison anyone he says is a terrorist?”

    Yes he does. Now ask if he has the authority.

    1. Yep, that’s the crux of the problem right there, isn’t it?

  16. In any case, the Feinstein amendment (which passed almost unanimously) represents an astonishing abdication of legislative responsibility.

    Why should today be different from any other day?

    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.

    How about if the Congress stop passing legislation that is blatantly unconstitutional? Or is that asking for too much?

    1. 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.

      This should be an easy one for the courts; “Void for vagueness.”

      Next!

      1. how about void for total abdication of any decency, intelligence, respect for honor, knowledge of the constitution of the USA, ad infinitum and total As*holery.

  17. As Sen. Lindsey Graham (R-S.C.), a leading supporter of the bill, explained on the Senate floor in November, “the statement of authority to detain?does apply to American citizens, and it designates the world as the battlefield, including the homeland.”

    I wonder if Graham has any fucking idea how much that statement makes him sound like a Nazi. Aside from the creepiness of referring to the U.S. as “the homeland”, there’s the idea that the U.S. Congress has the authority to “designate the world as the battlefield”.

    “Today, Afghanistan. Tomorrow, the world.”

    1. I couldn’t agree with you more, especially about Graham being an infinite as*hole.
      but we do have to face the fact that our representatives do not come from Mars. What has happended in modern life that so many citizens can not forsee the obvious consequences of giving such power to government? Does the free cheese mean that much??

  18. How would the courts ever get a chance to hear a case on this legislation?

    The people who would file suit are all going to be indefinitely detained without trial, and certainly no phone calls… There won’t be anyone to file the lawsuit. Your friends and neighbors wouldn’t know if you had been kidnapped, killed, or if you just wandered off, how would they know to petition for your release?

  19. “Does the president have the power to imprison anyone he says is a terrorist?”
    Not legally, but no one in this dumb fuck country would stop him.

  20. The deciding argument on this issue is not: what is the law or the Constitution? The deciding argument is: what percentage of law enforcement and/or military personnel will enforce a Presidential order of indefinite detention? Legalities are just hot air and words on paper; we’re passed that and have arrived at ‘how many guns does he have?’.

  21. Making more mistakes to cover earlier mistakes. If (after deciding it was really necessary) we had declared war on Iraq and Afghanistan, we wouldn’t be having these problems.

    Once War is declared the Laws of War (established by the Hague and Geneva conventions). Saboteurs (Terrorists) are dealt with under the Laws of War. A formal hearing is held to establish if the persons in question are saboteurs. Those that are, are executed. Look up Operation Pastorius to see how its done right.

    Since we didn’t declare war, we now have bad legislation chasing bad decisions.

  22. If you’ve done nothing wrong when your TEAM is in power, you have nothing to fear

  23. the legality of military detention “without trial.” Furthermore

  24. But unlike the AUMF, the NDAA explicitly affirms the legality of military detention

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