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Start Out the New Year with Indefinite Detention

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Happy New Year! No way to start the New Year out right than new detainee provisions formalizing indefinite detention.

Here is the part of Obama’s signing statement for the Defense Authorization that pertains to the most onerous parts of the detainee provisions, with my comments.

Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable.

Shorter Obama: we were prepared to continue indefinitely detaining people based on my Executive Order until they die off. What’s wrong with that?

Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe.

This is a fair point, one that he should have made much more strongly when this bill (now law) was being debated. A little fear-mongering would have been nice too.

My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.

Apparently, Obama has been reading “associated forces” into the AUMF for the last three years. I guess that’s why AQAP members, who weren’t covered by the AUMF, are dead.

Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF.

Note, this statement can be read both ways: not just to say that indefinite detention is not new (which it’s not, and which I’ve been saying for some time), but also that anything they claim the courts have recognized as lawful–like the use of deadly force while purportedly trying to detain someone–remains lawful.

Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. [my emphasis]

At one level, it’s nice to see Obama affirming that he won’t indefinitely detain us in military custody. Partly, though, Obama is still signing a law that President Mitt or Newt or Santorum could–and would–use to indefinitely detain Americans. As I said, “Vote for me, or President Newt will indefinitely detain you.”

But Obama isn’t even making that campaign promise! Note the trick here. Section 1021 pertains to all indefinite detention, not just military detention. But Obama only promises not to put Americans into indefinite military detention. I guess promising that Americans wouldn’t be indefinitely detained, period, was too much of a stretch.

My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Remember, “other applicable law” includes Scott v. Harris, which authorizes the use of deadly force when you’re pretending to try to detain someone.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

A month ago, I noted that Obama had ways of maintaining civilian primacy without vetoing this bill. This section makes it sound like he agrees.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. [my emphasis]

The Republicans are going to go nuts about this passage–not only is Obama saying the waiver is minimally restrictive on him, but he’s also saying he will exempt “appropriate categories of cases” from presumptive military detention. That may well include “anyone captured in the US.” Let’s hope so.

As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

Nothing I disagree with in this section. Though, again, it’d be nice to have seen the Administration make this argument at more length–while invoking the danger of following the Republican approach–before the bill was passed.

This statement is precisely what I expected. A belated defense of civilian law. And an attempt–one even more timid than I imagined–to pretend that Obama objects to the principle of indefinite detention, even including the possibility of indefinite civilian detention for American citizens.

I’ve put the full signing statement below the rule. Read more →

Obama Apologists Ignoring the Rotting Corpse of Anwar al-Awlaki

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It’s been amusing to see how Obama apologists have taken Lawfare’s very helpful explainer on the NDAA’s detainee provisions to pretend that their president isn’t signing a bill that he believes authorizes the indefinite detention of American citizens.

Take this example from Karoli.

Here’s how she claims that Lawfare proves that the bill doesn’t authorize indefinite detention of American citizens.

Key point rebutting the contention that the indefinite detention provisions apply to United States citizens:

Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.” [emhasis original]

Of course, Karoli can only make this claim by pretending that section 1022–the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens–is section 1021–the section that affirms the President’s authority to indefinitely detain people generally. And she can also make this claim only by ignoring the section where Lawfare answers her question directly.

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either.

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t–at least according to the unrebutted claims of Carl Levin that I reported on over a month ago–is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

The initial bill reported by the committee included language expressly precluding “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.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

But what’s not unclear is what Obama believes about the bill he’s signing. That’s true not just because (again, according to the unrebutted statement of Carl Levin) the Administration specifically made sure that the detention provisions could include Americans, but because the Administration used a bunch of laws about detention to justify the killing of American citizen Anwar al-Awlaki.

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

  • The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)
  • Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF
  • Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission
  • Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention. [original typos corrected]

We don’t have to guess about what the Administration believes the law says about detention and its unfortunate premeditated side effect of death because we have the dead body of Anwar al-Awlaki to make it clear that the Administration thinks Hamdi gives the Executive expansive war powers that apply even to American citizens.

You don’t get to the targeted killing of American citizens (which, after all, doesn’t offer the possibility of a habeas corpus review) without first believing you’ve got the power to indefinitely detain Americans (with habeas review).

Now, to Obama’s, um, credit, I don’t think he actually wants to indefinitely detain Americans. He seems to have figured out that the civilian legal system is far more effective–and plenty flexible–for detaining terrorists for long (and usually life, in the case of actual terrorist attackers) sentences. He doesn’t necessarily want to use the power of indefinite detention he believes he has, but (as the unrebutted claims of Carl Levin make clear) he wants to be able to continue to claim he has it, probably because a bunch of other claimed authorities–demonstrably, targeted killing, and probably some kinds of domestic surveillance–depend on it.

But that doesn’t excuse what he will do by signing the bill into law. He’s signing a bill that grants the executive broad powers of detention that he believes to include American citizens. And while he may not want to detain Americans, that’s no guarantee that President Newt won’t want to.