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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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