Indefinite Detention, and Our Unlikely Ally in the Fight

At the close of the last year, President Obama signed into law the National Defense Authorization Act for 2012, which includes language that commentators claim, not unfairly, would permit the indefinite detention of even American citizens by a willing administration. The operative sections permit “detention under the law of war without trial until the end of the hostilities” of any “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.” See NDAA, § 1021(c)(1)), (b)(2). The initial definition includes no carve-out for American citizens: theoretically, then, under this provision, any American citizen suspected of “support[ing]” a terrorist cell could face indefinite detention without trial or hearing.

Thankfully, President Obama will decline to exercise this authority for the duration of his tenure in the White House (pdf):

I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret [the NDAA] in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

President Obama’s signing statement lawfully construes the NDAA by building off of the closing subparts of § 1021, which follow:

(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities- 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.

Essentially, President Obama reads subparts (d) and (e) to reduce the entirety of Section 1021 to a tautology: “the law is what the law is.” As commander-in-chief, that’s certainly his prerogative. But because executive authority to detain stems from congressional grant, subparts (d) and (e) arguably actually permit the executive to exercise whatever authority he believes to be lawful. I’m heartened that we can trust President Obama not to claim the maximum authority he’s been given, but equally certain that we cannot so readily expect the same restraint from those members of the loyal opposition currently vying for the seat behind the Resolute desk. If the unthinkable should happen, then, Mr. Obama has in Marian fashion forged a sword that he will not wield, but could, by another’s hand, slay the state all the same. Republicans have always opposed Boumediene v. Bush, the 2008 Supreme Court decision that forbade indefinite detention without trial for war on terror detainees, and required that any such individuals at least retain the right to petition for a writ of habeas corpus. It’s all too easy to imagine a President Romney, on day one, moving swiftly to undercut Boumediene and put the apparatus of detention fully in place. And now, with the NDAA’s enhancements, there’s no indication he’d even need Congress’ help.

If this is a fight that ultimately materializes, though, let’s keep in mind how many allies we actually have. For one, Justice Scalia, dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), has railed at length against the notion that American citizens may be subject to military process simply on suspicion of terrorism:

Justice O’Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10—11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process. [. . . .]

In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U.S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U.S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80—84 (2003); see also Cramer v. United States, 325 U.S. 1 (1945). [. . . .]

There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods.

Though not our normal practice, here I’ve preserved in-line citations to illustrate just how broad and deep the legal opposition to indefinite detention runs, and how easily even a Justice as conservative as Scalia may call it to mind. Absent a true, nationwide suspension of the writ of habeas corpus — which has happened only once in our entire history, and which Congress would never authorize — a six-member majority of the Supreme Court, at least, will not permit the full evils of the NDAA to ever be realized. And that is an encouraging thought.



  1. Your supposition of the Supreme Court preventing this practice (regardless of the Administration that undertakes it) rests on a huge and faulty assumption – that anyone will ever be granted Standing to test the principle. See, as I read the law using that pesky Reasonable Person test, if you get declared a supporter of the aforementioned groups ( or others arising from them, etc) you become a terrorist/enemy combatant, and tragically there’s now a ton pf procedural precedent for loosing all rights once that happens (including the right not to be murdered by your government as a teenager thousands of miles from any active battlefield. Thus, I highly suspect we’ll never see this tested, because if you can be declared an enemy combatant by executive order – and you presently can; and you can then be subject to all sorts of extra judicial punishments, you can’t also have legal standing to challenge this.

  2. It might take a while, but I don’t think it’d be impossible. Lakhar Boumediene managed to hire an attorney to convince the Court that he was allowed to file a writ of habeas corpus, so he could file a writ of habeas corpus. But you’re right in that, if a Romney administration decided to re-implement the worst excesses of the Bush administration — no lawyer, no outside contact, all that — it would be years before the first test case reached a federal court, and therefore years for each detainee. Ugh. Now I’m depressed.

    1. And Obama’s record is better? How many detainees – innocent I might add – have been granted the habeus writ – only to continue to be detained because the Administration pulls the National Security card? Or refuses to release them for other reasons? Do you really think this will only be abused by Republicans?

  3. It’s actually illegal — in a “there’s no argument to the contrary” sense — to detain anyone who has been granted a writ after the appellate procedure exhausts. I’m not aware that this administration has continued to detain anyone after that phase, and if they did, you can be sure we’d have heard about it. And, Obama’s oveseen the repatriation of a number of detainees exonerated by the process — like Lakhar Boumediene, and the Uighuirs.

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