President Obama: It’s not too late to reject bad detainee law

To begin with, members of Congress have proclaimed that the bill — which is not a model of clarity — would authorize the detention without charge of U.S. citizens. The Supreme Court has held that the post-9/11 Authorization for Use of Military Force only permits the detention of U.S. citizens under very narrow circumstances. Some of this new legislation’s supporters in Congress, however, seemingly read the Supreme Court’s decision as giving the government broad powers to detain citizens, and they claim that the bill codifies this reading. 

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Why should we be concerned about detention without charge for U.S. citizens who fight alongside the enemy? If construed broadly, the bill could reach Americans that no fair observer could call “enemy fighters” with a straight face: people apprehended nowhere near any actual battlefields, who have never directly participated in hostilities. Even if the bill is construed more narrowly, the peculiar nature of the current war — in which it is exceedingly difficult to define the enemy, and in which few people are “caught in the act” of hostilities — raises the significant possibility of erroneous detention of American citizens. We should be in no hurry to add Americans to the ranks of detainees who spent years at Guantánamo Bay simply for being in the wrong place at the wrong time.

The bill also includes a mandate that a subset of terrorist suspects be held in military custody, rather than being referred to the Justice Department or other law enforcement agencies for investigation, interrogation, and/or prosecution. Citing a hodgepodge of exceptions and waivers to the mandate, the bill’s authors claim that it does not constrain the president’s flexibility to deal with terrorist suspects as he sees fit. But if that were true, the military custody requirement would serve no purpose. The truth is that this provision makes it much harder, logistically and politically, for the administration to place detainees under the jurisdiction of civilian authorities.

The effect of this provision is to cripple our nation’s counterterrorism efforts. The civilian criminal justice system has been our most effective means of bringing terrorists to justice. About 400 terrorists have been convicted in civilian courts in recent years, compared with a single-digit conviction record in military commissions. Moreover, the FBI has been able to glean invaluable information from suspects during its interrogations. Throwing up obstacles to the involvement of civilian authorities means that the nation will be fighting terrorism with one hand tied firmly behind its back. For this reason, the Secretary of Defense, the head of the CIA, the Director of National Intelligence, and the Director of the FBI have all opposed the bill.

Finally, the bill features arbitrary restrictions on the transfer of detainees to other countries. No one detained at Guantánamo Bay can be brought to the U.S. — a prohibition that prevents civilian trials for Guantánamo detainees, even though the legislation elsewhere acknowledges that civilian trials are an appropriate disposition under the law of war. The bill also makes it nearly impossible to transfer Guantánamo detainees to other countries, even if the U.S. has determined that a particular detainee no longer poses a threat — indeed, even if the U.S. has determined that the detainee never posed a threat and was apprehended by mistake. And a little-noticed provision of the bill could be interpreted to extend this transfer restriction to all detainees who are subject to mandatory military detention. In other words, the government must transfer certain terrorist suspects to military custody, and then must continue to hold them regardless of circumstances or new information.

Requiring the continued detention of individuals based solely on the fact that they were at one time suspected of terrorism is profoundly wrong. It is not the behavior of a nation that abides by principles of justice and the rule of law. Other nations will take note — as will those who promote terrorism using the message that the U.S. is at war with Islam.

By releasing a statement saying that President Obama’s advisors are not recommending a veto, the White House has signaled that the president intends to sign the bill. It would be extraordinary for the president to change course now. But to sign a bill that permits the indefinite detention of U.S. citizens without charge, erects pointless barriers to law enforcement’s counterterrorism efforts, and requires the detention of innocent people would be even more extraordinary. It’s not too late for President Obama to reject this historic affront to our liberty and our security.

Elizabeth Goitein is co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law.