Catching up with the Senate on Detainee Matters

The past week has seen various developments in Congress’ efforts to consider legislation regulating the detention of ‘unprivileged enemy belligerents’ at Guantanamo and beyond. Most notable, the Senate finally released the language of its version of the defense authorization bill, and it includes a number of provisions that parallel those passed by the House of Representatives back in May. (The full bill is a huge document, with detention-relevant provisions starting on p. 579.) Recall that the House version of the bill would prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, and also seemingly extend and/or expand the President’s authority to use force against terrorist suspects worldwide. I argued here, here and here that the legislation was ill-advised and praised the Obama Administration for threatening to veto it.

So how does the Senate version do? In a few respects, worse than the House. Topping the list of deeply misguided provisions is Section 1032, which would require the military to detain anyone determined to be “(A) a member of, or part of, al-Qaeda or an affiliated entity; and (B) a participant in the course of planning or carrying out an attack or attempted attack against the United States and its coalition partners.” Put differently, even if an Al Qaeda member has been criminally charged in a slam-dunk federal prosecution for credit card fraud, and is chatting up a storm with the FBI en route to negotiating a plea agreement, the feds would be compelled under this law to transfer him to military detention without further ado. Ben Wittes does a fine job of highlighting just what a ludicrous blow such a restriction would be to U.S. counterterrorism efforts, so I won’t recapitulate the arguments here. Suffice to say harder to imagine a better illustration of the expression ‘shooting one’s self in the foot.’

In contrast, the Senate bill is a substantial improvement over the House version in its attempt to clarify the scope of the 2001 Authorization for Use of Military Force (AUMF). Again, this is the domestic statute that has come to serve as the key legal authorization for ongoing detentions in Afghanistan and Guantanamo, as well as (at least in part) for U.S. targeting operations overseas. Where the House bill seemed intent on expanding the scope of that authorization (indeed, on expanding our understanding of the nature of the armed conflict in which the United States is engaged), the Senate bill appears to contain no such language. On the contrary, it ties detention authority squarely to the 2001 AUMF, and describes the scope of that detention authority precisely as the courts (and Obama Administration) have done in the Guantanamo habeas cases in the federal courts. It also, for the first time, makes express Congress’ intention that detention under this authority be carried out pursuant to the law of war. I’ll be interested to hear others’ reactions, but I read this as codification of the status quo (with a slap to the D.C. Circuit to emphasize that international law is relevant), not an expansion of authority that exists.

SEC. 1031. AUTHORITY TO DETAIN UNPRIVILEGED ENEMY BELLIGERENTS CAPTURED PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) IN GENERAL.—The Armed Forces of the United States are authorized to detain covered persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) as unprivileged enemy belligerents pending disposition under the law of war.
(b) COVERED PERSONS.—A covered person under this section is any person, including but not limited to persons for whom detention is required under section 1032, as follows: (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following: (1) Long-term detention under the law of war without trial until the end of hostilities against the nations, organizations, and persons subject to the Authorization for Use of Military Force. (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–14 84)). (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) CONSTITUTIONAL LIMITATION ON APPLICABILITY TO UNITED STATES PERSONS.—The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States except to the extent permitted by the Constitution of the United States.