Strange bedfellows on Capitol Hill, ranging from Sen. Al Franken (D-Minn.) to Rep. Jeff Landry (R-La.), are joining forces to change controversial detainee language that was signed into law by President Obama last month.
The bipartisan effort is a clear indication that the debate on the government’s power to detain suspected terrorists, including U.S. citizens, will continue into 2012.
When Obama signed the National Defense Authorization Act (NDAA) last month, he paired it with a signing statement, noting he had “serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”
He’s hardly the only one.
Both libertarian Rep. Ron Paul (R-Texas), who is running for president, and the Council on American-Islamic Relations, for example, have issued statements saying the NDAA provisions violate the Fifth Amendment.
At question is a provision in the new law wherein Congress affirms the president’s right to detain persons who were “part of or substantially supported al Qaeda, the Taliban or associated forces.” The president may detain these persons “under the law of war without trial until the end of the hostilities.”
President George W. Bush originally claimed a similar right under the Authorization for Use of Military Force, a law passed in 2001, shortly after the 9/11 terrorist attacks. To the dismay of some on the left, Obama has asserted the same claim, and Congress has now codified it.
The provision, however, does not specifically exempt U.S. citizens, and that’s the rub.
“You go down a slippery slope,” Franken told The Hill. “To not give people a hearing, to not give an American citizen the right to have his case heard in a court — I think that’s one of our basic rights. Once we’re starting to get rid of our basic rights, we’re in real trouble.”
The president vowed that his administration would never use these powers against American citizens.
“The president promises, that’s nice,” Rep. Jerrold Nadler (D-N.Y.) told The Hill. “But what about the next, or another, administration? This administration’s promise is no guarantee against how the law may be used by future administrations.”
Supporters of the detention provisions argued that the president already has the authority to detain U.S. citizens, and that such powers are necessary in the global war on terror.
“The threat to our homeland is growing,” Sen. Lindsey Graham (R-S.C.) said during debate on the bill in the upper chamber. “Homegrown radical terrorists are becoming the threat of the 21st century, and now is not the time to change the law.”
GOP presidential candidate Mitt Romney took a similar position, saying during a debate last week that American citizens who join al Qaeda “are not entitled to due process.” His answer was booed by the South Carolina crowd.
Nadler argued against assuming someone is a terrorist, stressing that is “why we have due process, to determine the truth.”
That the language could open the door to indefinite detention of U.S. citizens raised concerns in both chambers before the bill was passed.
Sen. Dianne Feinstein (D-Calif.) offered an amendment specifying exemption from the detention provisions for U.S. citizens. It was rejected, 45-55, as most GOP senators voted no. Republicans who backed Feinstein’s measure included Sens. Rand Paul (Ky.), Mike Lee (Utah), Mark Kirk (Ill.), Susan Collins (Maine) and Jerry Moran (Kan.).
The Senate subsequently passed an eleventh-hour amendment saying the section would not alter existing law relating to the detention of U.S. citizens.
The problem is that existing law on the issue of detaining U.S. citizens and treating them as enemy combatants has yet to be resolved by the courts.
Legal experts pointed to two cases since 2001 where a court decision on the president’s authority regarding the detention of U.S. citizens could have been rendered. They cite the cases of Jose Padilla, during the Bush administration, and Ali Saleh al-Marri, under Obama.
Both were American citizens and were held in military detention — Padilla for three and a half years, al-Marri for almost eight. In each case, the administration used its power to move the accused from military supervision into the civil court system for trial before a U.S. federal court could rule on the detention issue.
In a third case involving a U.S. citizen, Yaser Hamdi, the Supreme Court ruled that Hamdi could be detained, but he was captured in Afghanistan, not the United States.
Kirk told The Hill recently that the end result of the NDAA is a “muddle” that doesn’t take a position on citizen military detention.
Landry echoed that sentiment: “The problem is the vagueness of the law. To allow the executive branch to encroach upon the liberties of American citizens based on an interpretation of a vague law is dangerous.”
Benjamin Wittes, a senior fellow at the Brookings Institute and co-founder of the Lawfare blog, said concerns about an administration being eager to detain U.S. citizens to test its power are overblown because the sitting judges on the Supreme Court would likely strike it down.
“There is still no law that says you can’t do it, and there’s still no law that says you can do it,” Wittes said. “There are probably five justices on the Supreme Court who would say you can’t do it. And that’s going to discipline any administration.”
Kirk said he expects the high court will eventually rule that citizens cannot be detained indefinitely.
“If a future president uses the authority, it will be smacked down quickly,” Kirk said.
Landry, however, said that would be small consolation for some U.S. citizens in indefinite military detention. Those cases can take years to resolve through the legal system.
“To fix a law like this is Congress’s responsibility,” he said.
Feinstein has reintroduced her defeated amendment to exempt American citizens. The bill has bipartisan support in the Senate, and a version has been introduced in the House.
While it remains to be seen how far the bills will go this year, Landry remains optimistic. He said he has received a commitment from House Armed Services Committee Chairman Buck McKeon (R-Calif.) that the panel will revisit the law.
“I have a commitment from the chairman,” Landry said. “If he gives us the hearing he’s promised, and we go through the regular legislative procedure, we could get this whole thing resolved in under 60 days. The law will be clear and the constitutional rights of U.S. citizens will be protected.”