An amendment from Dianne Feinstein passed as part of the Senate’s defense authorization bill yesterday punts one small aspect of detention policy to the courts, namely whether the US military can indefinitely hold an American citizen. Adam Serwer, who has had excellent coverage of the detention pieces of the defense bill, had this report:
Can Americans be indefinitely detained by the military on suspicion of terrorism if arrested on American soil? Thursday evening the Senate added a compromise amendment to the defense spending bill that states: Maybe. Specifically, it says the bill does not alter current authorities relating to detention, leaving either side free to argue whether current law allows or prohibits indefinite military detention of Americans captured in the US [...]
The reason the compromise amendment worked is that it leaves the question of domestic military detention open, leaving the matter for Supreme Court to resolve should a future president decide to assert the authority to detain a US citizen on American soil. Senators who defended the detention provisions can continue to say that current law allows Americans to be detained based on the 2004 Hamdi v Rumsfeld case in which an American captured fighting in Afghanistan was held in military detention. Opponents can continue to point out that the Hamdi case doesn’t resolve whether or not Americans can be detained indefinitely without charge if captured in their own country, far from any declared battlefield. They have the better of the argument.
The Obama Administration may still veto the bill, since this punting to the Supreme Court on this one aspect does not address their point, which isn’t really opposition to indefinite detention as much as it is opposition to having Congress dictate detention policy at all. They already operate under the premise that the US can indefinitely detain terrorist suspects, and they want that power maintained in the executive branch rather than codified into law. It’s unknown whether this will be enough for the Administration to veto the defense authorization bill, after it comes out of a House-Senate conference and passes Congress.
Of course, this is but a small piece of the problems with the bill from a civil liberties perspective, which Glenn Greenwald pointed out yesterday. He also noted that current and prior Administrations already did and are doing many of the aspects of the bill, and that the defense spending measure would merely codify them into law. This includes the mandatory imprisonment and indefinite detention of all terrorist suspects by the military, a renewal of the 2001 Authorization to Use Military Force to cover a wide range of potential terrorist suspects, including “anyone who substantially supports Al Qaeda, the Taliban or associated forces” (basically making the post-9/11 state of war endless), and a limitation on the ability to transfer detainees from Guantanamo or potentially Bagram Air Force Base, which would make it difficult to end the Afghanistan war.
So while giving courts the ability to decide if an executive can have the military capture and indefinitely detain a US citizen is better than just writing it into law, it doesn’t do nearly enough to address the civil liberties deprivations in the bill.