Indefinite Detention

Does the president have the power 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 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.