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Indefinite military detention for U.S. citizens now in the hands of a secretive conference committee

December 8, 2011 - by Donny Shaw

If Congress does not pass a Department of Defense Authorization bill that Obama will sign by the end of the year, almost all of the U.S. military’s activities around the world would be jeopardized. At this point, the House and Senate have both passed their versions of the bill (H.R.1540 and S.1867), but they have disagreement on several provisions, including a provision opposed by the Obama Administration that would require the military to indefinitely detain terrorism suspects, including American citizens living in the U.S., without charge or trial.

With the House having voted 406-17 to “close” portions of the meetings and avoid public scrutiny, members from both chambers and both parties are meeting in a secretive conference committee to work on reconciling the differences between the House and Senate versions of the bill. On the military detention provision, their main task is going to be to find a solution that can pass both chambers (again) and not draw a veto from President Obama.

Contrary to popular perception, the Obama Administration is not strongly opposed to the provisions in the bills that would authorize indefinite military detentions for U.S. citizens. Here’s what the Administration had to say in a Statement of Administrative Policy on the Senate bill:

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

In other words, they’ll take it and recommend that Congress passes clarifying legislation in the future, which, of course, will never happen. What they oppose is the provision that would mandate that power be used for all terrorism suspects besides U.S. citizens. From the same statement:

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.

As you can read for yourself here, Section 1031, affirming the “authority of the armed forces of the United States to detain covered persons…” does not contain an exemption for U.S. citizens. Section 1032, mandating the military detention authority be used for terrorism suspects, does, but that is the section that the Obama Administration says must be removed or else he will veto. The Administration has been stressing the need for flexibility in their powers to collect information and incapacitate terrorists, which likely means that they want to retain the power to detain suspects outside the context of war and the Geneva Convention protections that would apply. The secretive conference committee may still be able to overcome Obama’s veto threat while also codifying the power to indefinitely detain U.S. citizens without having to charge them or give them a trial.

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Comments

  • drm 12/08/2011 5:50pm
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    OpenCongress Staff

    Aloha visitors from Reddit, hope this was helpful & of interest. (We’re also part of the coalition behind stop #SOPA & other #netfreedom campaigns.) Feel free to leave questions here for Donny. Check the official legislative actions, our aggregated news & blog coverage, public comment forum, and email-your-members-of-Congress using our unique (free & open-source & not-for-profit) message builder.

  • AdmThrawn 12/08/2011 7:31pm
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    According to the Library of Congress version, there is a amendment in Sec. 1031 in the most recent iteration that specifically precludes this law from affecting “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.”

    Ergo, while not a specific exemption from action as in section 1032, it does negate the idea that this creates a NEW threat to citizens, does it not?

    Or is that not sufficient for a reason I am missing?

  • Comm_reply
    donnyshaw 12/08/2011 11:15pm
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    OpenCongress Staff

    Well, underlying this whole thing is the fact that in current law (Padilla and Hamdi SCOTUS decisions) indefinite detention of U.S. citizens is basically admissible. The amendment you are referring to clarifies that Section 1031 does not change that. But 1031, with the amendment, still does something important — it expresses congressional support for the authority to detain U.S. citizens that has already been advanced by the executive and judicial branches.

    It’s also useful to note that right before that amendment was approved, another one was rejected, 45-55. The purpose of that one would have been to "limit the authority of the Armed Forces to detain citizens of the United States under Section 1031. Here’s the roll call for that:

    http://www.opencongress.org/vote/2011/s/214

  • Comm_reply
    captpjv 12/14/2011 5:22pm
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    This is NOT my America…I have the right under the 14th and 6th amendments…WHICH should not be changed until ratified by the majority vote of WE the people! The rest of this is hog wash.

  • drm 12/08/2011 7:58pm
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    OpenCongress Staff

    Good question, I’ll make sure Donny takes a look – he’s done more research on this than I have by far.

    Psyched to have you here, visitors from Reddit – we follow your comment threads closely on bills – just a reminder, this summer OpenCongress launched a free & open-source way to email all three of your members of Congress about a bill. Announcement- w/ screenshots – in the case of #s1867, if you go to write-your-reps, you’ll have handy access to info such as, “Sen. Gillibrand, your most-recent roll call vote on this bill was ‘Aye’” or “98% of users on OpenCongress.org oppose S.1867.” or “Sen. Gillibrand, campaign contribution data shows that you received $32,750 in the 2010 election cycle from the misc issues industry, which is relevant to this bill and its issue areas.” Try it out!

  • kxmas 12/08/2011 8:35pm
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    The Obama administration is talking out of both sides of their mouths. They asked for this! Fast forward to 4:43:29 http://www.c-spanvideo.org/program/SenateSession4951

  • Comm_reply
    AmE 12/08/2011 9:05pm
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    I did watch it again, no they did not.

  • Comm_reply
    kxmas 12/08/2011 9:16pm
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    Watch it again! Carl Levin says that American citizens were originally excluded from the provision, but the Obama administration asked for that exclusion to removed. Levin then restates that point. Udall then confirms that it was the Obama administration that asked for the removal of the the citizen exclusion.

  • kxmas 12/08/2011 9:31pm
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    From the Congressional Record:

    Mr. LEVIN. Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?
  • drm 12/08/2011 9:46pm
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    OpenCongress Staff

    Following this discussion – & the Reddit comment thread – and our Chartbeat account.

    OpenCongress is a free, libre & open-source project of our 501©(3) non-profit, the Participatory Politics Foundation. Currently we have 2500 active visitors, and today (as of this writing) we’ve served over 125,000 pageviews. Remarkably, one-third of those were this blog post. But so far today we’ve only received two (much-appreciated!) donations totaling $30.

    Our Blog covers Congress in real-world language every day, repping radical transparency, for meaningful public accountability. Please give a tax-exempt donation to support our not-for-profit, free-software work. For more info about our public-service mission, please see our non-profit funding prospectus. PPF is a proud member of the “geek lobby” coalition to stop #SOPA

  • Monsoon 12/10/2011 6:01pm
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    As an Executive Committee Member of the Pima County Republican Party, I call for the resignations of all politicians that voted to approve the NDAA.

    Jeff Bales
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  • knarf61 12/11/2011 7:58am
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    Isn’t this how the Checka began? I hear 8 bells for the Republic.

  • snibbodmot 12/12/2011 12:07am
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    Section 1031, affirming the “authority of the armed forces of the United States to detain covered persons…” does not contain an exemption for U.S. citizens. Section 1032, mandating the military detention authority be used for terrorism suspects, does, but that is the section that the Obama Administration says must be removed or else he will veto. The Administration has been stressing the need for flexibility in their powers to collect information and incapacitate terrorists, which likely means that they want to retain the power to detain suspects outside the context of war and the Geneva Convention protections that would apply. The secretive conference committee may still be able to overcome Obama’s veto threat while also codifying the power to indefinitely detain U.S. citizens without having to charge them or give them a trial.

  • Comm_reply
    Ajscott123 12/12/2011 11:27am
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    Let’s just be clear on what snibbodmot is saying — this can still pass even if Obama vetoes if Congress can get 2/3 on it. We can’t let that happen.

  • katsung47 12/12/2011 6:33pm
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  • Tokishone 12/12/2011 7:46pm
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    I don’t know what to make of all of this anymore… I’m stressing out and having serious anxiety thanks to all this nonsense… I seriously hope that this bill fails, otherwise I don’t know what I’m going to do. America as we know it will be changed forever… I’m so scared… terrified actually…

  • amusedandannoyed 12/13/2011 12:34pm
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    Here is my worry:

    This section may mean that any person, including the First Lady, could be a suspected terrorist on the premise that they have a garden, keep any food longer than 7 days including ice cream and anything frozen… and then be held prisoner for something as simple as not handing over the television remote. This section turns people into slaves, I thought slavery had been abolished.

    Please correct me if I am wrong.

  • gregmarshall3 12/14/2011 9:19am
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    Reading and comprehending exactly what obama means in the ‘Statement of Administrative Policy’ does not require a genious. I’m not a genious, as you can tell by my spelling, but I can read, and if you havent read this statement mentioned above, then you are ignorant and dont know what your talking about, or completely deluded and incapable of accepting the fact that obama is specifically requiring that US citizens not be an exception to this detainee wording, in which case he promises to veto, if exceptions for US citizens are made.
    Dont worry. Your not alone. I thought he was a good guy too, when I first saw and heard him on Oprah. I see how gullible I am. I bet Oprah is pissed that he used her platform to launch his agenda….which apparently is not his alone, but even so, is very twisted and wrong. By the way, in my cheapo Websters dictionary, EVIL is defined as TWISTED and WRONG. Ignorant of Self.
    I was surprised to learn this as well.

  • gregmarshall3 12/14/2011 9:39am
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    It is possible, that the only real insurgents and terrorist, are those persons whom we have elected into office, and those corporations we have allowed to continue to exist, even though they are infested with berney madeoff’s, and other real world sociopaths. I believe the danger to us from terrorist in other countries, has been perpetuated and exasperbated by the terrorist in this country, and those terrorist are not you and me, until we stand up against evil.
    I really Hope that I am wrong about this. But I know my thinking, and I know that by thinking I’m just wrong, I’m really just trying to comfort myself.
    The truth speaks for itself.
    Have a Merry Christmas or Happy Holiday, Neighbors!

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