While much of the reporting on the National Defense Authorization Act, now pending in Congress, has focused on issues such as authorization for a military parade in Washington, Jon Schwarz at the Intercept noticed a far different issue: the option for the indefinite detention of American citizens without charges.
The Constitution protects the rights of the accused under the nation’s criminal statutes, including the provision of a statement of charges, a “speedy trial,” a defense counsel and a jury trial.
The idea of no-notice, no-ending, no-charges detention arose in response to 9/11, with the argument that terrorists are more like enemy combatants than home-grown criminals.
But the Intercept noted the legislation has expanded its scope over the years.
“The fiscal year 2012 NDAA included provisions that appeared to both codify and expand a power the executive branch had previously claimed to possess — namely, the power to hold individuals, including U.S. citizens, in military detention indefinitely — based on the Authorization to Use Military Force passed by Congress three days after 9/11,” the report said.
Then-Rep. Ron Paul, R-Texas, criticized the 2012 NDAA as providing “some weak restraints on the executive branch’s ability to use this power.”
The report explained that, theoretically, the provisions should apply only to those involved in 9/11, such as al-Qaida and the Taliban.
“But now, incredibly enough, a bipartisan group of six lawmakers, led by Sens. Bob Corker, R-Tenn., and Tim Kaine, D-Va., is proposing a new AUMF that would greatly expand who the president can place in indefinite military detention, all in the name of restricting presidential power,” The Intercept said.
If the Corker-Kaine bill becomes law as currently written, according to the report, “any president, including Donald Trump, could plausibly claim extraordinarily broad power to order the military to imprison any U.S. citizen, captured in America or not, and hold them without charges essentially forever.”
The plan is moving forward “in good faith,” with “a combination of sloppy drafting and clear reluctance to take the executive branch head-on” possibly handing “genuinely tyrannical powers over to the president,” the report said.
The issue is complicated: During peacetime a president absolutely cannot hold a U.S. citizen apprehended far away from a battlefield without charges, the report noted.
“But this changes in wartime. The 2001 AUMF did not give explicitly give this power to the executive branch, but the George W. Bush administration claimed that this language from the resolution provided it implicitly.”
The 2001 authorization said the “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.”
Under the Bush administration, a U.S. citizen was arrested and detained as an “enemy combatant” briefly in a military prison before being moved to the civil court system, the report said.
Critics argued there wasn’t a specific authorization, but that changed in 2012 when Congress wrote a new version, allowing the detention of persons linked to 9/11 or “a person who was part of or substantially supported al-Qaida, the Taliban, or associated forces that are engaged in hostilities against the U.S.”
The issue hasn’t been the subject of a lawsuit yet, but the Intercept reported Deborah Pearlstein, professor of law at Cardozo Law School, warns it remains “latent.”
President Obama, at the time, said he would not choose to detain American citizens without trial, but he left the impression the authority was at his disposal.
When a federal judge issued an injunction against the provision, the Second Circuit Court of Appeals overturned it, because the section “has no bearing” on citizen detention.
The Intercept said the proposed changes say Congress “affirms that the authority of the president to use all necessary and appropriate force” under the new AUMF.
“This matters because the Corker-Kaine AUMF allows the president to decide that he has the power to use force against any ‘organization, person, or force’ essentially at will, by designating them as associated with previously named enemy groups,” the report said.
The Intercept said there’s “nothing” to prevent “a president from naming an American organization or individual to the [terror] list.”
The report warned: “The Corker-Kaine AUMF would give the president the power to seize anyone on earth, including Americans, just by sending a piece of paper to Congress asserting that a person or organization is associated with an already-named terrorist group. And like the 2001 AUMF and the NDAA before it, the Corker-Kaine AUMF does not prohibit the executive branch from using the military to apprehend and detain Americans in the U.S. itself.”