Mark Udall’s Unsatisfactory Solution to the Detainee Provisions

As I have repeatedly described, I have very mixed feelings about the debate over Detainee Provisions set to pass the Senate tonight or tomorrow. I view it as a fight between advocates of martial law and advocates of relatively unchecked Presidential power. And as I’ve pointed out, the SASC compromise language actually limits Presidential power as it has been interpreted in a series of secret OLC opinions.

Which is why I’m no happier with Mark Udall’s amendment than I am with any of the other options here.

On its face, Udall’s amendment looks like a reset: A request that the Executive Branch describe precisely how it sees the military should be used in detention.


(a) In General.–Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:

(1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).

(2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.

(3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.

On one hand, this seems like a fair compromise. The Republicans want something in writing, Carl Levin claims SASC met just about every demand the Administration made in its attempt to codify the authority, but in response the President still issued a veto threat. So why not ask the President to provide language codifying the authority himself?

And after the President submits such language, then all three committees with equities on this issue–not just SASC, but also SJC and SSCI–can propose legislation to codify those authorities (note, Udall is a member of SASC and SSCI, but not SJC).

(c) Congressional Action.–Each of the appropriate committees of Congress may, not later than 45 days after receipt of the report required by subsection (a), hold a hearing on the report, and shall, within 45 days of such hearings, report to Congress legislation, if such committee determines legislation is appropriate and advisable, modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.

(d) Appropriate Committees of Congress Defined.–In this section, the term “appropriate committees of Congress” means–

(1) the Committee on Armed Services, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate; and

(2) the Committee on Armed Services, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives.

So far so good–in the face of bad legislation, a legislative punt, one that requires the President to reveal to everyone how he uses and wants to use his Commander in Chief power.

My complaint with Udall’s amendment, however, is that it–like the default of doing nothing–equates to an expansion on the way the 2001 AUMF is understood to be used (though it no doubt reflects the war powers the Executive currently claims to have). That’s because Udall situates the definition of “covered persons”–those who can be detained, but also, because of the way OLC has built its opinions off of the AUMF and Hamdi, those who can be wiretapped or assassinated and probably a bunch of other things–not just in our war against al Qaeda (as the SASC language does), but also in the Iraq War and “Any other statutory or constitutional authority for use of military force.”

(b) Covered Persons.–A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:

(1) The Authorization for Use of Military Force (Public Law 107-40).

(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

(3) Any other statutory or constitutional authority for use of military force.

Now, I assume the “other statutory authority” is meant to cover things like FISA Amendment Acts and the Military Commissions Acts–though I’d bet there are some breathtaking interpretations hiding behind that “constitutional authority” bit. Also keep in mind that statutory authority does things like authorize the use of drones on the border.

And as I showed earlier this year, Jack Goldsmith used the Iraq War authorization language to expand the definition of “terrorists” against whom the President could direct his Commander in Chief authorities beyond just those tied to 9/11.

I’ll have much more to say about this. But note that Goldsmith’s limit here [in his May 2004 OLC memo authorizing warrantless wiretapping] does not match the terms of the Afghan AUMF, which is limited to those who were directly tied to 9/11.

That the President is authorized 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. [my emphasis]

In other words, while the requirement that the program collect content only from those with a tie to a terrorist may be a new limit imposed in 2004, it also seems to exceed the very AUMF that Goldsmith was newly relying upon to authorize the program.

Goldsmith does have one out for that problem. As he notes elsewhere, the Afghan AUMF language on terrorism is repeated (and actually expanded) in the Iraq AUMF.

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Did you know that the Iraq AUMF mentions “terrorist” or “terrorism” two more times–19–than it mentions “weapon”–17?

In other words, we know OLC (and therefore, the President) has, over the years, used language in the Iraq AUMF to expand the target of the GWOT from just terrorists tied to 9/11 to terrorists more generally. And Udall’s amendment would codify that move.

Besides, why the fuck are we adhering to language in the Iraq AUMF when that war ends next month?

And none of this, of course, prevents the use of this authority against American citizens.

So while Udall offers a way to reconsider a crappy bill, it does so on terms that start by expanding the scope of the AUMF language included in the SASC bill.

I seem to be one of the few people that cares about this. But the reason the Administration has issued a veto threat is not because it wants to close Gitmo. Rather, it is increasingly clear the Administration has threatened to veto any language that does not codify the fairly limitless claims the Executive Branch has, over the last decade (and especially since 2004) greatly expanded the application of the AUMF as a way to ignore laws on the books.

There is, IMO, just one real advantage to the Udall Amendment: it would remove this debate from the Defense Authorization, which prevents either side from fear-mongering to push through their favored solution. Aside from that, though, Democrats and the Administration sure do seem intent on a really vast codification of Commander in Chief power.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

21 replies
  1. Larue says:

    Thanks for the detailed (as always) insights to this issue Mz. Wheeler.

    Nothing is as it seems . . . the march to a police state continues.

    Wqshington’sBlog has some thots on the police state side of this Senate/Executive Dance Of Control . . . .

  2. jerryy says:

    Instead of saying that you are one of the few that care about such niceties that you have outline above, maybe it would be better to say that you are one of those that are opposed to this headlong rush into the police state or a twisted, perverted constitution avoiding monarchy.

    Looking through the historical record, without squinting too hard at it, police states fail, some rapidly, most quickly, but they fail. So why are the folks in charge in such a rush to bring that on us?

  3. Jason Leopold says:

    Levin and McCain wrote an op-ed in the WaPo today (if you didn’t already see it:

    They say, “We are concerned that much of the debate over these provisions demonstrates a basic misunderstanding of what this bill would do and attributes to it many things that it would not do.”

    They then claim:

    ●No provision in the legislation expands the authority under which detainees can be held in military custody. On the contrary, it codifies detention authority that has been adopted by two administrations and upheld in the courts. The bill states clearly that it does not expand or limit the president’s authorities under the original 2001 authorization of the use of force against al-Qaeda.

    ●The bill does not tie the administration’s hands in deciding how best to handle a detainee. It is the executive branch that determines whether a detainee meets the criteria for military custody, under procedures that this legislation allows the executive branch to develop. Not only does the bill include a national security waiver, but it expressly authorizes the transfer of any military detainee to civilian custody for trial in the federal courts.

    ●The bill does not threaten to interrupt ongoing surveillance operations or interrogations or damage time-sensitive anti-terrorism operations. In fact, it specifically prohibits the interruption of ongoing surveillance, intelligence-gathering or interrogation sessions.

    ●The bill does not create new restrictions on the transfer of detainees from Guantanamo, either to foreign countries or to the United States. It does maintain some existing limits but gives the administration greater flexibility in waiving them. The bill doesn’t prohibit the transfer of detainees to the United States, and the limits it imposes on transfers to third countries are less restrictive than is past legislation by making the certification requirements for such transfers easier to use.

  4. MadDog says:

    @Jason Leopold: Levin and McCain should take their comedy duo act on the road. This part of their statement has us all in stitches:

    “…The bill states clearly that it does not expand or limit the president’s authorities under the original 2001 authorization of the use of force against al-Qaeda…”

    (My Bold)

    As has been pointed out so many times here, both Administrations claimed unlimited authority under the 2001 al-Qaeda AUMF to do whatever they want against anyone anywhere anytime forever.

    Shorter Levin and McCain: “Our bill provides no limit on the existing unlimitation of Executive authority.”

  5. emptywheel says:

    @MadDog: Actually, I think that’s fine. They challenge the Admin and its apologists to refute the claim. And the only way they can do that is by saying, “we’ve been exceeding AUMF for years!”

  6. MadDog says:

    Sort of OT and sort of not – Via McClatchy:

    Sudan and Iran culpable in 1998 embassy bombings

    A court has found Sudan and Iran legally responsible for the 1998 bombings of U.S. embassies in Kenya and Tanzania. Now, further court hearings will determine what the victims are owed.

    In a 45-page decision issued late Monday, U.S. District Judge John Bates concluded that the Republic of Sudan, the Ministry of the Interior of the Republic of Sudan, the Islamic Republic of Iran, the Iranian Revolutionary Guards Corps and the Iranian Ministry of Information and Security were “indeed responsible for supporting, funding, and otherwise carrying out this unconscionable attack…”

    Iran and Sudan? Weren’t OBL and al-Qaeda assessed as responsible?

  7. What Constitution? says:

    @emptywheel: I’m looking forward to the Presidential Statement accompanying the veto, something like this: “So last night, I was helping Sasha with her social studies homework; it was about the United States Constitution. And you know what, she showed me a quote in her textbook from the United States Constitution and it said something like the President takes an oath ‘to protect and defend the Constitution of the United States’ and Sasha says to me ‘Daddy, what does that mean?’ And I thought about that and, well, I think it at least means I can’t sign this bill.”

  8. Jeff Kaye says:

    While the battle rages over how this bill affects Executive authority, or how it affects detention policy and procedures, few are paying any attention to the Ayotte amendment to the bill, which will place sundry interrogation techniques (read torture) into a secret “classified” annex to the Army Field Manual.

    The SASC spokesperson assures me there is strong opposition to this in the Senate, but we shall see what that amounts to soon enough. The human rights groups put off their alerts to their supporters on this issue until just today (with the exception of NRCAT, who sent out an email a few days ago, but looking right now, I see nothing about it on their website.

    Perhaps I’m an alarmist to see this as an ominous development, or a naif who doesn’t see a right-wing lost cause when it’s staring me in the face.

    I await the results.

  9. GKJames says:

    That the executive wants unlimited power is expected. That the legislature, rather than check executive power, enhances it is lamentable. Oddly, it’s probably not even a con; Levin, McCain, and Udall likely believe what they say about this not being an expansion of executive power.

    My question is, to what extent, if at all, does the legislature represent public sentiment on this issue? Is it simply a collection of moldy, decades-old suits, immune to political accountability, who can do as they please? Or is it worse, in that they accurately represent the majority of American opinion?

  10. MadDog says:

    @Jeff Kaye: I may be too cynical, but assuming that the Ayotte amendment doesn’t pass, I would view her attempt in this matter as at least a means to provide a 2012 Repug Presidential and Congressional campaign platform signature item that plays handily as red meat to the Repug base and even to some neanderthal-like unthinking Independents and Democrats.

    Making one’s enemies suffer is a longstanding human fantasy, and to couple it with the cachet of doing so out of American patriotism is a Repug marketing wetdream.

  11. MadDog says:

    In case folks missed it the first time, a excellent National Geographic documentary is on again this evening. I saw it the first time around and there was what I thought was unprecedented commentary in it from former Bush/Cheney regime national security supporters like former CIA and NSA Director Mikey Hayden. Some of his commentary that royally pissed off the Brits has to be seen to be believed.

    From National Geographic:

    Stopping the Second 9/11

    09:00 PM ET to 11:00 PM ET

    The real-life international drama plays out like the plot of a deadly spy thriller. In the summer of 2006, as many as 18 conspirators planned to simultaneously blow up almost 10 airplanes by bringing hydrogen peroxide-injected soda-bottles-turned-bombs onto flights bound from London to the U.S. and Canada. Now, NGC with unprecedented access to undercover agents and top officials from British Counter-Terror Command, the CIA and Homeland Security goes inside the true story.

    It is also being repeated again tonite at midnight ET, so if you are watching the NFL game right now, set your DVR for at least the later showing.

  12. MadDog says:


    “…Some of his commentary that royally pissed off the Brits has to be seen to be believed…”

    In particular, watch Mikey Hayden when with an arrogant, shit-eating grin, he tells how he personally fucked our oh-so junior partners in the GWOT, British intelligence and law enforcement, into a corner.

    Basically, Mikey Hayden and the rest of the Bush/Cheney regime blew the British intelligence and law enforcement operation by insisting that the Brits take down the 18 conspirators before the Brits had sufficient evidence for their courts.

    The US attitude expressed by Mikey Hayden was “Fuck the courts! Be like us Mikey and let somebody else figure out what to do with the detainees.”

  13. Occam says:

    @Jim T. and emptywheel

    But that is just the mandatory detention yes? My understanding is that at the express direction of the executive, US Citizens are not exempted from detention.

  14. emptywheel says:

    @Occam: @Occam: Yes, correct.

    1031 does not change the status quo under Hamdi which permits the designation of American citizens as enemy combatants and therefore their indefinite detention under the laws of war. It doesn’t change it one way or another.

    1032 exempts US citizens (and rsident aliens for something they did in the US) from mandatory military detention, but still allows military detention for both.

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