creators.com opinion web
Liberal Opinion Conservative Opinion
Jacob Sullum
Jacob Sullum
15 Oct 2014
Voter Fraud, Abortion Safety and Other Phony Emergencies: Two Texas Laws Illustrate a Politically Poisonous Legislative Habit

Last week a federal judge in Texas overturned that state's voter ID law, while a federal appeals court … Read More.

8 Oct 2014
No Local Option on Gay Marriage: Federalism Is No Longer a Viable Approach to Same-Sex Unions, If It Ever Was

Bob Barr, the former Georgia congressman who wrote the Defense of Marriage Act (DOMA) in 1996, later … Read More.

1 Oct 2014
The Brightest Spot in Holder's Record: How the Attorney General Tried To Make Criminal Justice Less Senselessly Punitive

Attorney General Eric Holder, who last week said he plans to step down as soon as Congress approves his replacement,… Read More.

Detention Pretension

Comment

Do you see a problem with a law that authorizes indefinite military detention of anyone the president identifies as an enemy of the state? For President Obama, the problem is clear: The law does not give him enough discretion.

Obama has threatened to veto the National Defense Authorization Act if the final version includes a provision approved by the Senate last week that requires military detention of some terrorism suspects. Obama, like his predecessor, wants the leeway to keep them in civilian custody and maybe even give them a trial, if he so chooses. Those of us who are not the president are apt to be more concerned about the unchecked power the bill gives him to lock us up and throw away the key.

Defenders of the bill's detention provisions say they merely codify powers granted by the Authorization for Use of Military Force (AUMF) that Congress approved after the Sept. 11 terrorist attacks. But unlike the AUMF, Section 1031 of the National Defense Authorization Act explicitly "affirms" the legality of military detention "without trial." Furthermore, it says such treatment is permitted not only for "a person who planned, authorized, committed or aided the terrorist attacks" or who "harbored those responsible" (language that echoes the AUMF), but also for anyone who joins or supports al-Qaida, the Taliban or "associated forces" — a much wider net.

Section 1032 of the bill creates a presumption in favor of military detention for a member of al-Qaida or an allied organization who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners." But it says "the requirement to detain a person in military custody under this section does not extend to citizens of the United States."

Taken together, these two sections mean military detention is authorized but not required for U.S. citizens. As Sen. Lindsey Graham, R-S.C., a leading supporter of the bill, put it on the Senate floor last month: "1032, the military custody provision ...

doesn't apply to American citizens. 1031, the statement of authority to detain, does apply to American citizens, and it designates the world as the battlefield, including the homeland."

In short, the bill asserts the president's power to snatch anyone from anywhere, including a U.S. citizen on U.S. soil, and confine him in a military prison without charge until the end of a perpetual, worldwide war against an amorphous enemy. Senators from both parties who were alarmed at that prospect tried to remove the detention provisions, but the most they could achieve was an amendment saying the bill does not "limit or expand" the president's powers under the AUMF or "affect existing law or authorities" regarding detention of people "captured or arrested in the United States."

According to its sponsor, Sen. Dianne Feinstein, D-Calif., the amendment was intended to "declare a truce" between those who say the detention power described by Graham already exists and those who disagree. Feinstein said the amendment "leaves it to the courts to decide."

So far the government has not been eager to test the constitutionality of its detention policies. In 2004, the Supreme Court said due process required that a U.S. citizen captured on the battlefield in Afghanistan and held as an enemy combatant be given "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The Bush administration let him go instead. In the two cases where the Pentagon took charge of terrorism suspects arrested in the United States, the government likewise avoided a definitive judicial resolution, transferring them back to civilian custody before the Supreme Court had a chance to rule on their treatment.

In any case, the Feinstein amendment (which passed almost unanimously) represents an astonishing abdication of legislative responsibility. The courts should be deciding the constitutionality of the detention policy established by Congress, not sifting through deliberately ambiguous statutory language to figure out what that policy is.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

COPYRIGHT 2011 CREATORS.COM



Comments

0 Comments | Post Comment
Already have an account? Log in.
New Account  
Your Name:
Your E-mail:
Your Password:
Confirm Your Password:

Please allow a few minutes for your comment to be posted.

Enter the numbers to the right:  
Creators.com comments policy
More
Jacob Sullum
Oct. `14
Su Mo Tu We Th Fr Sa
28 29 30 1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30 31 1
About the author About the author
Write the author Write the author
Printer friendly format Printer friendly format
Email to friend Email to friend
View by Month
Authorís Podcast
Walter Williams
Walter E. WilliamsUpdated 22 Oct 2014
Froma Harrop
Froma HarropUpdated 21 Oct 2014
Thomas Sowell
Thomas SowellUpdated 21 Oct 2014

14 May 2008 Permanent Disaster

23 Oct 2013 No Smoke, Yet Ire

24 Jan 2007 Tap Dance: Bush's Tardy Compliance With Surveillance Rules Highlights His Contempt for the Law