Indefinite Detention Without Trial for U.S. Citizens? Ask the President, Senate Says

ANALYSIS

 
on December 05 2011 11:36 AM
U.S. Senate Intelligence Committee Chairman Senator Feinstein speaks about START Treaty on Capitol Hill in Washington
U.S. Senate Intelligence Committee Chairman Senator Dianne Feinstein (D-CA) led the charge to shield U.S. citizens from language in the bill. Reuters

After an impassioned Senate debate over whether the government can indefinitely hold without trial American citizens captured on U.S. soil, a question that strikes to the heart of what limits govern the president's expanded powers in the post-9/11 era, the senators rendered a decision on Thursday:

They punted.

At issue were provisions in a $662 billion U.S. Deprtment of Defense spending bill intended to clarify when the military has the authority, or in some cases the obligation, to indefinitely detain suspected terrorists. Congress lent the executive branch broad powers to deploy military force against Al Qaeda and its affiliates shortly after Sept. 11, including the ability to detain suspected terrorists without trial outside of the civilian justice system.

The Senate on Thursday was embroiled in a debate over whether the bill would allow such military interventions for citizens arrested on American soil. One group of senators maintained that authority already exists and argued that the Supreme Court has affirmed its constitutionality, pointing to both a case involving an American citizen captured in Afghanistan and a case involving an American citizen apprehended in Chicago. Other senators disagreed, and warned of a growing danger of encroaching on civil rights.

Leahy Objects

Supporters of the detention provisions in the bill continue to argue that such measures are needed because, they claim, 'we are a nation at war,' said Sen. Patrick Leahy, D-Ver. That does not mean that we should be a nation without laws, or a nation that does not adhere to the principles of our Constitution.

Sen. Dianne Feinstein, D-Calif., led the push against the provisions, floating an unsuccessful amendment that would have limited mandated military detentions to people captured abroad. Ultimately, the Senate agreed nearly unanimously to another Feinstein amendment that resolved the impasse by deflecting the question to other branches of government.

The purpose of the amendment is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one, Feinstein said. She added that this bill does not endorse either side's interpretation, but leaves it to the courts to decide.

President Threatens to Veto Bill

The legislation's fate is now unclear -- it must be reconciled with a House version, and the president has threated to veto the bill because mandating military custody for some suspects would tie the hands of our intelligence and law enforcement professionals. But the Senate still missed an opportunity.

Congress, I think, has been just about silent since September of 2001 on the sort of scope of the war on terrorism, said Stephen I. Vladeck, a professor of law at American University. So even as Congress passed lots of other legislation related to the war on terror they left the really central question untouched, and now they seem on the verge of saying the war on terror is really a global war, one doesn't really need to be directly related to the 9/11 attacks to be the subject of military force. Whether these are solid policy moves or not, it's really the opposite of cabining the president's authority in any meaningful way.

President Obama has embraced a muscular interpretation of that authority. He issued an executive order extending the Bush administration's policy of indefinite detention for suspects imprisoned at Guantánamo Bay (albeit with an overhauled framework for reviewing cases), expanded drone strikes to Somalia and Yemen and ordered the assassination of the radical al-Qaeda cleric Anwar al-Awlaki, a U.S. citizen.

Senators on both sides of Thursday's debate invoked the executive branch's overriding authority on who can and cannot be detained indefinitely -- Sen. Dick Durbin, D-Ill., noted that we have ceded to presidents of both parties the power to protect America. The White House does not seem to see any problem with the current scope of its powers. A press release warned Congress not to open a whole new series of legal questions that will distract from our efforts to protect the country, and on the question of whether the president can hold without trial American citizens captured away from a battlefield, the Senate obliged.

While the issue of whether such detentions are constitutional remains one of the open-hanging, residual legal questions from the Bush administration, the implications of the Senate not weighing in should be minimal, said Benjamin Wittes, a senior fellow at the Brookings Institution. Far more consequential, Wittes said, is a provision that seems to require the executive branch to use military detentions for certain suspects. The White House has objected strenuously to the idea, as have U.s. Secretary of Defense Leon Panetta and FBI Director Robert Mueller.

It has this incredible presumption flip as to who's the line agency responsible for detention, and we have this idea that's sort of ten years old that when you capture people domestically you handle them in the criminal justice system unless there's some dramatic reason not to, Wittes said. That was the presumption of the Bush administration and it's the presumption of the Obama administration.

Is Domestic Soil Part of Battlefield?

But during the debate, senators argued that the military's ability to detain and interrogate suspected terrorists cannot be limited to foreign countries. Sen. Carl Levin, D-Mich., said that the attacks of Sept. 11 meant the U.S. has been made part of the battlefield without any doubt, and Sen. Lindsey Graham announced ominously that the threat to our homeland is growing in the form of homegrown terrorists, who are becoming the threat of the 21st century.

Graham also noted that being designated an enemy combatant could be a de facto life sentence, since the military has the ability to hold such people until the end of hostilities. That is a nebulous concept in a conflict that Graham called a war without end.

For reasons that make sense Congress is worried about being too precise, putting such specific details into the detention standard that you actually leave out people you didn't think about, Vladeck said. But given the relative lack of constraints on the president, Vladeck added, If that is the status quo, what have we done here besides making something that looked like it was temporary and tied to 9/11 a permanent delegation of authority to the president?

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