Buzz’s Journal---Can the President Arrest and Detain American Citizens Indefinitely without Trial?

The American judicial system has served the American people well since the adoption of the US constitution (1787) and Bill of Rights (1791). Like any other human institution, it is not perfect, but, over its long history, it has been a key element in making America the freest country in the history of the world. Unfortunately, since September 11, 2001, some Americans believe that our courts are unequal to the task of dealing with the threats of global and domestic terrorism, and, as is always the case with people who feel under threat, some Americans are willing to give up a part of their liberties in order to achieve a greater sense of security. Since 9/11, there have been various attempts, mostly successful so far, to bypass the courts, and to transfer power to the executive branch. The latest iteration of this trend can be found in Section 1021 of the National Defense Authorization Act ("NDAA"), which contains controversial provisions relating to the indefinite detention of certain persons ("covered persons") by the executive branch, i.e., by the armed forces of the US. The purpose of the legislation is to move certain suspects out of the American justice system at the discretion of the president, and to deny them access to Article III courts (that is, federal courts established by the US constitution).

As a lawyer, I decided to turn off the TV and put down the newspapers' coverage of the NDAA, and to read the law itself and commentaries by law professors and others about what the act does, and does not say, and what the act does, and does not do. In other words, I decided to do a little legal research to see if I could clarify for myself, exactly what this new legislation is. As I suspected would be the case, the law is complicated and there is much in doubt about what it means. I soon discovered that just reading the law was insufficient and that I had to learn some of the legal history of how the Bush and Obama administrations were approaching terrorist suspects from a legal standpoint. The question that I'm interested in answering, and the burning issue for those who object to the law is this: Does the NDAA authorize the indefinite detention of American citizens?

After 9/11, Bush administration, asserted a right to indefinitely detain any terrorist suspect, including American citizens, under the theory that we are at war with international terrorism, and that the president's inherent power to wage war included the power to detain. According to this view, the president can bypass the courts and the judicial system, and hold anyone engaged against us in the war on terror. Also, shortly after 9/11, Congress passed a law called the Authorization for Use of Military Force ("AUMF"), which authorized the president to use "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11 attacks, or who harbored such persons or groups, but it is silent on the issue of detention. Nonetheless, a plurality of the US Supreme Court agreed with the administration that the power to detain is necessarily implied by the power to use military force, but the court did not go further to explain or define the limits of that right. Thus there are two arguments supporting military detention: (1) the inherent constitutional war powers of the president, and (2), Congressional support of that power pursuant to AUMF.

There were only two detention cases involving American citizens during the Bush administration. The first one, Hamdi v. Rumsfeld, involved an America citizen who joined the Taliban in Afghanistan and was actively fighting against the US, who was captured in Afghanistan and was brought to Guantanamo and then to the US. The court found that as long as a person was actively fighting abroad against the US, his American citizenship did not bar him from being indefinitely detained, just like any other enemy combatant. Hamdi himself was later released to Saudi Arabia on the condition that he gives up his US citizenship. But, the Hamdi case didn't answer the many legal questions surrounding detention, and because of its facts (American citizen who joined the enemy and was fighting against US troops in a foreign army outside the US, and who was arrested outside the US) Hamdi isn't legal precedent for the proposition that the president can arrest American citizens in the US and hold them indefinitely.

The other detention case involving an American was that of Jose Padilla, who was arrested in O'Hare and placed in military custody. Because this case squarely presented the situation of an American captured within the US and detained by the military, it was a good case to test both the Bush doctrine of unlimited presidential war powers and the AUMF. The Padilla case bounced around the US federal courts with varying results, but before the US Supreme Court could hand down a decision on the merits, the government voluntarily transferred the case to an Article III court, where Padila was tried in the regular way, was convicted, and is now serving (I believe) a life sentence. Thus, at the time the NDAA comes into the picture in 2011, we have only two cases actually involving the rights of American citizens detained in the US, but neither case decides the issue, which remains uncertain at best.

By the Congress considers the NDAA, the Obama administration is in office, an administration which presents itself as being more concerned with the rights of Americans than Bush; but, as it turns out, Obama takes a seemingly similar position as Bush, that is, that the president can arrest and detain anyone who offers "substantial support" (whatever that may mean) to terrorists. In an executive order issued in March, 2011, and in court filings involving detainees in Guantanamo, the Obama administration, like its predecessor, analogizes the war on terror to a regular armed conflict like WWII or the Korean War, which conflicts apply the law of war, which, in turn, gives the president acting through the army, the right to detain persons indefinitely as enemy combatants, not only those who are actively fighting our troops, but also those who are "substantially supporting" terrorists. Still, it is important to keep this perspective in mind: the Bush administration has used this claimed authority over American citizens only twice, and that the Obama administration has never used it.

Until the NDAA, Congress had been silent on the right to detain (remember that the AUMF of 2001 never mentioned detention). Section 1021 of the NDAA reads as follows:

(a) IN GENERAL.—Congress affirms that the authority of the
President to use all necessary and appropriate force pursuant to
the Authorization for Use of Military Force (Public Law 107–40;
50 U.S.C. 1541 note) includes the authority for the Armed Forces
of the United States to detain covered persons (as defined in subsection
(b)) pending disposition under the law of war.
(b) COVERED PERSONS.—A covered person under this section
is any person as follows:
(1) A person who planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001,
or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported
al-Qaeda, the Taliban, or associated forces that are engaged
in hostilities against the United States or its coalition partners,
including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy
forces.

Some parts of the law are quite clear, such as the provision in which Congress affirms that the military has the right to detain covered persons without trial, while other parts are vague and subject to varying interpretations (e.g., "A person who…substantially supported…"; forces " "associated with" those who are engaged in hostilities against the U.S.). It could take decades for the courts to determine what activities constitute "substantial support." and exactly what organizations or groups are "associated" with terrorist activities. Judicial interpretations of the law can be obtained via a writ of habeas corpus brought by detained Americans, which right to habeas corpus the NDAA does not purport to suspend (nor could it). Contrary to some of the rhetoric, an American citizen held by the military anywhere in the world, regardless of whether captured abroad or within the US, has the right to a writ of habeas corpus and to judicial review of his status, i.e., is he an enemy combatant or not. Non-citizens captured and held in the US also have the right to a writ.

At the very least, the NDAA represents the first time that Congress has explicitly given the US military, acting at the behest of the president, the right to detain persons in the US, a right asserted by both the Bush and Obama administrations. But, does the NDAA expand the power of the president to detain? The answer to this question is both yes and no. The NDAA codifies the AUMF and gives Congressional support to the claims of both the Bush and Obama administrations of the right to detain, but it is hard to see how the NDAA expands this power. One difference between then and now, is that people didn't get excited when the AUMF was passed in 2001, nor when two successive administrations repeatedly asserted, in numerous court filings, the power to detain.

The claim to the power to detain has been in existence for 10 years, and in those 10 years there is no court decision either upholding or denying the power to detain Americans. However, now that Congress has explicitly weighed in on the side of detention outside the judicial system, it is less likely that, with both the executive and legislative branches of government in favor, the Supreme Court will invalidate the law. While the NDAA did not settle the issue, there is no question in my mind that the NDAA advanced the cause of those who would like to bypass the American judicial system in the fight against terrorism.

Now, let's get down to a key question: Does the NDAA give the Army the power to arrest and detain American citizens who it claims are supporting terrorism? In other words, let's say that someone "whispered" to the authorities that you were supporting a terrorist group; whether you like it or not, you've now just become a terrorist suspect. Could the army arrest and detain you? That's what people are worried about. A fair answer to the question of whether the NDAA authorizes the army to indefinitely detain American terrorist suspects arrested in the US, is that the NDAA does not explicitly authorize this, nor does it prohibit it.

Let's stop here for a minute to look at what happened during Congress' consideration of the law. Senator Feinstein introduced an amendment to state explicitly that citizens "could not" be detained under the NDAA's restatement of detention authority. This guarantee that the act would not be applied to Americans, was rejected by the senate, and instead, a milder substitute provision was adopted that says "Nothing in this section shall be construed to affect 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. This provision of the law sounds pretty good until one realizes two things: (1) that there is no clear law on the subject so that the provision has little meaning, and (2) given an opportunity to spell out that indefinite detention did not apply to American citizens arrested in America, Congress refused to make that clear declaration.

Based on my research, I've come to these conclusions:

1. Much of the rhetoric about the NDAA is overblown, and the act itself is less consequential than the media stories about it would indicate. Habeas corpus is not suspended for American citizens, and the act does not require that citizens be detained and tried outside of Article III courts.

2. Given the signing statement by President Obama to the effect that he would not use the law to arrest Americans, and the position of at least two Republican candidates (Romney and Paul) that they, too, would not use the law against Americans, there is no clear and present danger that any American will be affected. Obama, although he supports the president's right to arrest and detain, has never used this claimed right, and Bush only used it twice.

Still, the NDAA does constitute a concern to people like me who believe in civil liberties and the American system of justice. Section 1021 of NDAA should be repealed (to his credit, Ron Paul has introduced a bill repealing the NDAA, but it has no chance of success), for these reasons:

1. The language of the bill is a muddle. As I've tried to indicate above, there is serious disagreement among legal scholars and civil libertarians about the meaning of the law. I think that anyone who studies the issue would have to agree that the bill is, frankly, a mess. No threat to American liberties should depend upon an unclear law, one which will take the courts years to decide, if ever. If an American is going to be subject to arrest, he or she should know, in advance and in clear language, what conduct is prohibited and what penalties and punishment he or she can expect to receive for violating the law. That is basic due process of law. The NDAA is grossly deficient in this regard.

2. The American judicial system is more than capable of dealing with domestic terrorism without resort to a parallel system of military arrest, detention, trial and punishment. Our judiciary can effectively deal with terrorist cases within the traditional framework of Article III courts, which are charged by the constitution with protecting the rights enjoyed by Americans.

3. Any attempt to shift power from the judicial branch to the executive results in a diminution of the rights of American citizens. Since this bill, at some level, does