31 Aug The 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.