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Print This PageThe Next President’s Detention Power
There’s so much domestic news these days it would’ve been easy to miss Eric Lichtblau’s story in yesterday’s New York Times about legislation introduced in Congress just before the August recess that would substantially define the scope of the United States’ war with Al Qaeda, et al. Indeed, it’s not clear why the Times itself finally just realized the significance of the bill – it was introduced back in July.
Late though it may be, the Times was right to note the bill’s significance. Introduced by Senators Lieberman and Graham in the Senate (with a companion bill in the House), the bill is principally devoted to further tinkering with the review scheme for Guantanamo detainees, a response to the Supreme Court’s recognition of constitutional habeas rights for the detainees in last term’s Boumediene case. Beyond that, though, it carries a major new authorization for executive detention – the grandest by far since the original authorization for the use of military force Congress passed in the weeks just after 9/11. Here’s the key provision:
(b) STATEMENT OF AUTHORITY.—(1) IN GENERAL.—Congress reaffirms that the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad. (2) AUTHORITY.—Congress reaffirms that the President is authorized to detain enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities.
There’s a better than decent chance the bill will go nowhere. Congress has a lot to do when it reconvenes in September, and a set of mammoth election-related distractions to contend with. On the other hand, there are a lot of developments in the real world that could put these issues back on the front page, beginning with a very active set of habeas cases now moving forward quickly in the D.C. district court (which Lyle Denniston has been tracking here). Most Hill staffers I’ve spoken with seem to be assuming a position of watchful waiting.
Whatever happens, the notion that this bill would “reaffirm” something Congress already did seems obviously wrong. The original AUMF authorized the President to:
… use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
With no limit to those involved with 9/11, no elaboration of what it means to be an “associated force” who might be captured anywhere in the world, and no language even attempting to impose some sort of “necessary and appropriate” requirement on detention — the new bill extends well beyond the 2001 original. It may well be, as Marty Lederman and others suggest, the bill’s authors are more concerned with ex post justification for the past years of broad detention authority. But it would be remarkable in more ways than one if either party actually took this up on the eve of the November election. If ever there were a blank check for the next resident of the oval office, whoever he may be, this is it.
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I think we can expect this path. Fist I expect that at the end of September or early October the Military Commission for KSM will be started. We will have the judge referring to the decisions in the Hamdan case for admissibility of evidence gained through coerced methods, non-application of the 5th amendment in Gitmo, etc. Everyday there will be reports about what KSM has pleaded too. At the same time, in order to keep us focused we will have pressure before the election by the President to get this Enemy Detainee Combatant Review Act to sharply curtail the extent of habeas review of detainees and put in place the broad detention power sought. And with all of this, with McCain coming out in support of this trying to entrap the democrats and the AMericans.
Best,
Ben
at 11:35 am EST Benjamin Davis
When reading the excerpt of the bill that you posted, my eyes jumped to the clause that read “regardless of the place of capture”. It reminded me of this passage from Jane Mayer’s, The Dark Side (p. 45):
“Now minutes before Daschle was about to submit the approved language to Congress for a vote, the White House was back again with a new gambit. Lott appeared on Gonzales’s behalf, insisting that the words ‘in the United States’ needed to be added to the scope of the President’s proposed battle zone. It seemed to Daschle a bizarre request. The wording would have given President Bush the authority to round up American citizens as enemy combatants, potentially stripping them of their civil liberties.
Daschle refused to give the President what he regarded as a blank check.”
As Professor Lederman points out in his linked post, the number of U.S. citizens captured on U.S. soil is a very small set. But this bill would seem to allow holding this set indefinitely as enemy combatants. Combine that with the broad language of “associated forces” and you have a very new and awesome detention power that could be used in the United States.
You write:
“There’s a better than decent chance the bill will go nowhere.”
Unfortunately, I am a bit less sanguine than you about the bill’s prospects. Sen. McCain referred to Boumediene as “one of the worst decisions in the history of this country.” The major co-sponsors of this bill are two of Sen. McCain’s closest surrogates, Sen. Graham and Sen. Lieberman. The other co-sponsor, Sen. Kit Bond, was a leading proponent of the recent FISA “compromise.”
I agree with you that this bill has no other constituency than the administration at this point, but it seems like during each recent election cycle there is one piece of national security legislation that gets proposed that is then used as a wedge against Democrats in Congress to make them look “weak” on national security.
The full text of the bill is here.
at 12:55 pm EST Non liquet
This language does less than you think. In the first round of combatant cases (Hamdi, Rasul, Padilla) the courts were faced with two extreme positions. The government argued the President had broad powers under Article II to detain prisoners. The petitioners asserted that US law required explicit authorization from Congress before even enemy soldiers could be detained. Rejecting both extreme positions, the courts (SCOTUS, and the Fourth Circuit for Padilla) found instead that detaining enemy soldiers is a necessary part of armed conflict. However, absent an explicit statutory authorization from Congress which would put such detention under US domestic law, the authority derives from the Laws of War (the international common law of armed conflict) and not from some imaginary Article II power.
Congress then missed an opportunity to authorize detentions in the DTA. So when Hamdan came before the Court, we had a repeat of the previous postures. The administration argued that there was an Article II power to create military commissions, while lawyers for Hamdan claimed that he had somehow acquired protection under the Bill of Rights. Again the court rejected both positions and restated its previous finding. Still missing any statutory authorization from Congress, the President’s power to hold and try enemy combatants derives from the Laws of War. Unlike domestic common law, international common law changes over time, and today most of the rules for holding enemy combatants are written down in the Geneva Conventions. So even though the Conventions may not be “self executing” and might not be a cause of action for any other type of legal proceeding, when the only authority for detention rests on international common law, then that authority is also limited by restrictions placed on it by that same international common law. SCOTUS found that a presidentially created military commission violated Common Article 3 of the GC’s and was not permitted.
Now if the new bill stated that “Congress authorizes the President to detain …”, then this would provide statutory authority, and then it would place the detentions under domestic law, and that might cancel out any future application of the Geneva Conventions by the courts. With statutory authority to detain, it now suddenly does matter if the GC’s are self executing. However, if Congress simply “reaffirms that the President is authorized to detain enemy combatants” then such language simply refers to the existing (law of war) authority and does not create a new statutory authority. So for the most part it really doesn’t do anything. The Supreme Court already said the President has this authority to detain, and Congress doesn’t do anything meaningful until it adds to that existing authority rather than just recognizing it.
at 4:15 pm EST Howard Gilbert
The International Law Association’s Committee on the Use of Force, which I chair, just presented our initial report on the definition of armed conflict in international law August 20 in Rio de Janeiro. You can find the report and a list of the committee members here:
http://www.ila-hq.org/en/committees/index.cfm/cid/1022
We conclude that armed conflict situations that can give rise to the right to kill without warning and detain without trial are where intense inter-group armed fighting is occurring. Plainly this is not the situation everywhere members of al Qaeda or other terrorists may be found.
at 9:22 am EST Mary Ellen O'Connell