Terrorist Detainee Rules Are Not McCarthyist

Fears of Military Detention in the United States Are Wrong

Ken Gude explains why the detainee provisions in the bill heading for President Obama’s signature are flawed but do not establish military detention in the United States.

President Barack Obama, accompanied by Vice President Joe Biden, waves after signing the National Defense Authorization Act for Fiscal Year 2010.  (AP/Gerald Herbert)
President Barack Obama, accompanied by Vice President Joe Biden, waves after signing the National Defense Authorization Act for Fiscal Year 2010.  (AP/Gerald Herbert)

President Barack Obama later this month will sign the National Defense Authorization Act of 2012, which includes some hotly debated provisions for detaining suspected terrorists. Let me put this simply: The detainee provisions in the bill do not establish indefinite military detention authority for anyone captured in the United States. That’s not the story you would hear, however, listening to a strange union of conservative lawmakers and human rights and civil liberties groups. To hear them tell it, the U.S. military is taking over detention of terrorism suspects, even U.S. citizens.

The detainee provisions are seriously flawed, but it is inaccurate and irresponsible to claim, as both the American Civil Liberties Union and Human Rights Watch have, that this bill represents a return to the “McCarthy era.” This argument overlooks the key factor in assessing the scope of military detention. President Obama has made clear he does not want military detention in the United States, and Congress has already recognized that he has discretionary power to interpret detention authority to rule that out.

The final version of the National Defense Authorization Act, or NDAA, is absolutely clear. It does not limit or expand existing detention authority, which arises from the 2001 Authorization of the Use of Military Force, or AUMF. It is instructive to look closely at that 2001 law as it has now been more than 10 years since it was passed, and the details may have been lost:

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 of international terrorism against the United States by such nations, organizations or persons.

Any military detention authority contained in the AUMF occurs as an incident of the necessary and appropriate use of military force. Any such use of force is at the exclusive discretion of the president, subject of course to constitutional and international law constraints. Consequently, if the president does not believe it is necessary or appropriate to order military operations in the United States, then there is no military detention authority in the United States. While it is still an unresolved legal question whether the 2001 AUMF does in fact authorize military detention in the United States, given the serious constitutional issues that would raise, what is absolutely clear is that Congress cannot compel the president to use it if that authority does exist.

The Obama administration in word and deed has made it very clear that the president does not believe it necessary or appropriate to use military detention authority in the United States. Both Omar Farouk Abdulmutallab and Faisal al-Shazaad were arrested after attempting mass casualty terrorist attacks inside the United States. In both instances, conservatives called for putting them in military detention, but in both instances, the Obama administration chose to use the criminal justice system.

Recently, John Brennan, the top counterterrorism adviser to President Obama, made a strong case for using the criminal justice system for suspected terrorists captured in the United States rather than military detention:

We are a country that takes very seriously our commitment to the rule of law. When I go overseas and I talk to other governments, talking to them about making sure that they handle their cases appropriately and not throw people into military detention, not throw them into a military court, hold them indefinitely without the due process of law, this is what has caused a lot of problems overseas. And if we go down this road, we’re sending a very bad signal.

We need to demonstrate, through the strength of our judicial system, that we can handle these issues, particularly on our soil, in a way that’s consistent with our commitment to that rule of law, but also works very effectively in terms of getting the intelligence we need to keep this country safe.

The views of Sen. Lindsey Graham (R-SC), however, are far different. He doesn’t “believe fighting al-Qaida is a law enforcement function,” arguing instead that “our military should be deeply involved in fighting these guys at home and abroad.” Anyone paying attention to the news in the past year recognizes that President Obama is relying on the U.S. military to execute an aggressive war against al Qaeda overseas, especially when he ordered the Navy Seals on the mission that killed Osama bin Laden. But Sen. Graham is not the president, and so he does not have the power to direct the commander in chief on how to use military force once that authority has been granted by Congress.

We certainly know that in the current hyperpartisan debate, outrage sells. But a more sober analysis reveals that the NDAA establishes no new detention authority. The underlying legislation does establish some military detention power, but it gives the president, not Congress, discretionary authority over when and where to use it in the fight against al Qaeda. Yes, a future president may interpret that authority differently, but that is both a fight for another day and one that will not hinge on the 2012 NDAA. So let’s put away both the rhetoric and the fear that the U.S. military will be detaining U.S. citizens captured in the United States.

Ken Gude is Managing Director of the National Security team at the Center for American Progress.

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Ken Gude

Senior Fellow