The Truth about the New Detainee Policy
From the diaries…
On Thursday, Congress gave the President sweeping new power to detain American citizens indefinitely, without charge or trial. A provision in the National Defense Authorization Act (NDAA) empowers the President to detain anyone who “substantially supported” groups he determines are “associated forces” of terrorists.
The provision at issue, sec. 1021, was tucked into an 1800-page conference report that was shuttled through Congress in a matter of days. Given the complexity and weight of the issue, I was interested to read House Armed Services Committee Chairman Buck McKeon’s post on RedState explaining the bill’s detention policy. Unfortunately, the post is almost useless because it muddles two separate provisions of the NDAA.
Sec. 1021, the bill’s discretionary detention provision, authorizes the President to detain persons who “substantially supported” forces “associated” with al-Qaeda or the Taliban that “are engaged in hostilities” against the U.S. or its “coalition partners.” None of the quoted terms are defined. We do not know what constitutes substantial support, hostilities, or our coalition partners. Critically, the bill does not attempt to define “associated forces,” either. Without knowing what qualifies as an associated force, no one can be sure they are safe from the government’s detention.
Sec. 1022, the bill’s mandatory detention provision, requires the President to detain members of al-Qaeda who have planned or carried out attacks against the U.S. or its coalition partners. Only sec. 1022 states that it “does not extend to citizens of the United States.”
(You can read the language of both provisions in the conference report. Sec. 1021 begins on p. 653; sec. 1022 begins on p. 656.)
What’s troubling is that Chairman McKeon’s post gives you the impression that it defends sec. 1021—the discretionary detention provision—when, in fact, his post is all about sec. 1022, the mandatory provision. The post conspicuously defends “the provision,” without referencing a specific section number. And, at the end, it includes a chart titled “Section 1021 of the FY 2012 National Defense Authorization Act,” even though one of the two quotes in the chart is from sec. 1022, not 1021.
Sec. 1021—the provision I and other constitutional conservatives are most concerned about—is much more difficult to defend. Its expansive, undefined, and dangerous detention power goes well beyond what Congress authorized in its September 2011 Authorization for Use of Military Force (9/11 AUMF), even though the bill claims it only “affirms” the President’s authority under the 9/11 AUMF. To understand how much power sec. 1021 gives to the President, consider the 9/11 AUMF’s text, which Congress passed just days after the most deadly attack in U.S. history:
[T]he 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.
The 9/11 AUMF authorizes force only against persons and groups who have a connection to the September 11 terrorist attacks. The 9/11 AUMF says nothing about detention, let alone the indefinite detention of American citizens.
Despite the 9/11 AUMF’s plain language, the past two administrations have argued in court that the 9/11 AUMF authorizes the President to indefinitely detain certain persons the administration determines are enemies. Both administrations also have claimed the 9/11 AUMF applies to persons and groups that are “associated” with al-Qaeda or the Taliban. No 9/11 nexus is required, according to the President.
Section 1021 thus claims that it merely “affirms” the President’s authority under the 9/11 AUMF, including the alleged authority to detain persons the President determines are “associated forces.” While the section is framed as an affirmation, it can be viewed as that only if Congress adopted the President’s expansive interpretation of the 9/11 AUMF—an action Congress never had taken before Thursday. To be clear: When the Senate passed the NDAA conference report on Thursday, for the first time in history, Congress approved the indefinite detention of persons who “substantially supported . . . associated forces.”
Who could this cover? An American citizen living in Michigan makes a one-time donation to a non-violent humanitarian group. Years later, the group commits hostile acts against an ally of the U.S. Under the NDAA that just passed Congress, if the President determines the group was “associated” with terrorists, the President is authorized to detain the donor indefinitely, and without charge or trial.
NDAA proponents sometimes point to an amendment to sec. 1021, added by Sen. Dianne Feinstein, as proof that the NDAA doesn’t apply to Americans. The amendment, now subsection 1021(e), states:
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.
The key to subsection 1021(e) is its claim that sec. 1021 does not “affect existing law or authorities” relating to the detention of persons arrested on U.S. soil. If the President’s expansive view of his own power were in statute, that statement would be true. Instead, the section codifies the President’s view as if it had always existed, authorizing detention of “persons” regardless of citizenship or where they are arrested. It then disingenuously says the bill doesn’t change that view.
In fact, the Senate expressly rejected a provision that would have prevented the indefinite detention of American citizens. Sen. Feinstein offered another amendment to sec. 1021 that stated the section “does not include the authority to detain a citizen of the United States without trial until the end of hostilities.” That amendment was rejected 45-55. Sen. Feinstein’s other amendment, which does nothing to protect U.S. citizens, passed 99-1.
Our Constitution does not permit the federal government to detain American citizens indefinitely without charge or trial. I strongly believe in protecting the country’s security and equipping our Armed Forces with the tools they need to defeat our enemies. But the American people cannot support measures that, in the name of security, violate our constitutional rights.
The NDAA’s backers succeeded in part because of the bill’s length and complexity. And I concede that this issue takes time to understand. Over the next few months, I hope to join others who value our country’s constitutional rights to block the NDAA’s dangerous detention provision. Once the American public sees for itself what’s included in the NDAA, I’m confident they will demand we do so.