As currently drafted, H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, authorizes the President the authority to indefinitely detain persons, even American citizens arrested on American soil, without trial because they allegedly support the enemy:
SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged 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) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107-40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.
But, wait… it gets worse. The White House has threatened to veto the bill–but not because of this. In fact, the current draft of Levin-McCain came about because, “according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power.” Josh Gerstein confirms. Rather, the White House wants more flexibility in deciding exactly how it will detain people. The administration’s objections (PDF) expressly state that they believe that the detention authority already “exists under the Authorization for Use of Military Force.” It just wants to be free to chose how to use that power and not be required to use only the military detention option.*
As Adam Serwer puts it in Mother Jones, this bill therefore goes beyond the policy “that was followed almost without exception by the Bush administration: Domestic terrorism arrests are the province of law enforcement, not the military.”
Only a few people come out looking good in this, Mark Udall (D-CO) and Rand Paul (R-KY) chief among them. Udall was the only vote against passing this abomination out of the Democrat-controlled Senate Armed Services Committee and his amendment to strip the detention provisions was voted down 37-61 on Tuesday. Paul, one of the few Republicans to vote “Nay,” quoted James Madison: “The means of defense against foreign danger historically have become instruments of tyranny at home.” We could use a few more like them in both parties–and a lot fewer Lindsey Grahams and Mark Levins.
Supreme Court cases that most certainly would have affirmed that such detentions are unconstitutional (which they manifestly are) have been dodged before simply by remanding detainees over for civilian trials before an adverse ruling could be handed down. If the flexibility the White House wants is to keep playing that game, Congress should indeed clarify the detention powers of the AUMF. But it should be making it clear that that power does not extend to indefinite military confinement of American citizens without trial, not the other way around.
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* Disappointingly, the White House sounds like the worst caricatures of the Bush administration, going to great lengths in detailing its concerns that the bill “would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets… and would, in certain circumstances, violate constitutional separation of powers principles.” But not so much as a dependent subclause is devoted to the massive Constitutional defect inherent in indefinite detention of American citizens without trial.
