We’ve received a lot of comments and questions about the detainee provisions included in the recently passed S. 1867, The FY12 Defense Authorization Bill and I wanted to pass along this information that answers and addresses some of those questions.

This language is not as broad as some have implied, nor has it been deemed unconstitutional.  Rather, it is a carefully crafted provision to help defend our nation against the threat posed by al-Qaeda, while still upholding the Constitution. 

The provision is written in such a manner that it applies to a very narrowly defined category.  To be detained under these provisions, a suspect must be deemed to be a member of al-Qaeda or its affiliates and be involved in plotting or committing attacks on the United States. 

American citizens accused of carrying out or planning an attack against the U.S. and being affiliated with al-Qaeda still have the right to appear before a judge as is the case under current law.

The reality is that we need to treat these enemy combatants according to the laws of war, not the laws of our criminal court.  Terrorists, traitors, and those who declare war on the U.S. need to be tried in a military tribunal.  The current, and previous Administrations have followed this policy, which is based on precedence that dates back to George Washington.  The fact that the policy has been upheld by the Supreme Court also lends credence to the need to codify the language into law. 

Additionally, it is important to note that the current Administration’s veto threat is really only based on the fact that the language in the bill does not allow President Obama to close Guantanamo Bay, grant constitutional rights to terrorists, and try them in a civilian court.

The amendment offered by Senator Udall to remove the entire detainee provision would allow President Obama to proceed in that direction.  This would be the wrong course of action to take while we’re still fighting this al-Qaeda, which is a sworn enemy of our country.

Myths & Facts About the Detainee Provisions

The Obama Administration, with some Senate Democrats as their proxy, has launched several misleading arguments against these sections of the bill. The arguments are undermined by Supreme Court precedent, past practice, or common sense.

Myth: Section 1031 is inconsistent with the AUMF and Constitution “because it would authorize the indefinite detention of American citizens without charge or trial.”

Fact: First, the Supreme Court has already rejected this argument against Section 1031, when it held in the Hamdi case the detention of enemy combatants without the prospect of criminal charges or trial until the end of hostilities to be proper under the AUMF and the Constitution as long as there is a procedure in place for prisoners to challenge their classification as an enemy combatant. Those procedures currently exist. Notably, the person challenging his detention in that case was a U.S. citizen.

Justice O’Connor specifically took on detainee Hamdi’s argument that he was subject to indefinite detention without criminal charge, acknowledging the possibility that “Hamdi’s detention could last for the rest of his life.”  She found this to be of no moment, however, because longstanding law-of-war principles authorize the detention of enemy combatants “for the duration of the relevant conflict.”

Second, the true animating purpose of the section is to reaffirm the President’s authority to detain terrorists. Its definition as to who is authorized to be detained is taken essentially verbatim from the Obama Administration Justice Department’s legal briefs submitted in Guantanamo detainee habeas cases arguing who the President is authorized to detain under the law of war.  Section 1031 is current Administration policy as held lawful by the Supreme Court.

Military commissions have been used throughout our nation’s history to prosecute enemy combatants. For example, George Washington used a military commission to prosecute British spy John Andre for conspiring with Benedict Arnold. President Roosevelt used them to prosecute German saboteurs who had infiltrated the United States during World War II. In that case, the enemy alien saboteurs prosecuted in a military commission were captured on U.S. soil and included among them at least one U.S. citizen.  The decision to prosecute al Qaeda terrorists in a military commission rather than in a federal criminal court is supported by history and national security.

Myth: Cases involving terrorists captured on U.S. soil being transferred to military custody have “spawned extensive litigation and raised major statutory and constitutional questions concerning the legality of the government’s actions.”

Fact: Jose Padilla, an American citizen al Qaeda terrorist captured on U.S. soil, did challenge the legality of his military detention. The final judicial pronouncement was that the President possessed all the authority he needed to hold in military custody a U.S. citizen enemy combatant taken into custody in the United States.  The detainee provisions of the defense authorization bill reaffirms that position, and the legal authority for them is sound.

Myth: It is a “bragging right” for the United States that more than 400 have terrorists have been tried in federal court since September 11, while only six military commission cases have been concluded.

Fact: First, the idea that treating terrorists like criminals by trying them in the civilian justice system will increase America’s standing in world opinion is demonstrably false. As former Attorney General Mukasey has noted: “[W]e did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania. In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without.”

Second, the threat posed by many of the 400 people tried in civilian court—many of whom faced only immigration or false document offenses¹⁷ —is simply not comparable to the worst of the terrorists at Guantanamo, such as Khalid Sheikh Mohammad and his co-conspirators. It proves too much to cite the terrorist prosecutions in civilian criminal court as demonstrating the federal criminal system has a history of handling terrorism trials akin to that of the September 11 attacks.

Third, not all the experiences with terrorists in the civilian criminal justice system are worth repeating. Ahmed Ghailani, for example, was acquitted of all but one of the 285 charges brought against him in the civilian criminal justice system in connection with his participation in the 1998 East Africa Embassy bombings. There is also the case of Abdul Farouk Abdulmuttalab, the so-called Underwear Bomber, who was given Miranda rights and promptly stopped cooperating with investigators until his parents were found overseas and brought to the United States to talk their son into cooperating again.  It surely cannot be a counterterrorism practice worth repeating in the war against al Qaeda to tell terrorists they have a right to remain silent, then rely on the terrorist’s parents to cajole him into revealing intelligence information that could protect the American homeland from future attack

Fourth, the number of military commission trials has been small, mainly because President Obama, as one of his first acts in office, put every military commission case on hold.¹⁹ This includes halting the military commission trial of Khalid Sheikh Mohammad, who had offered to plead guilty in a commission. The President finally re-commenced the cases in 2011, meaning no military commission cases were allowed to proceed for more than two years.

The argument that the civilian criminal justice system is somehow inherently superior to the military commission system does not withstand scrutiny, and does not justify the Obama Administration’s reflexive policy to treat terrorists as common criminals, as demonstrated by its reticence to use military commissions.

Myth: The bill will deprive the Administration of the flexibility it needs in terrorism matters.

Fact: S. 1867 gives the President ample authority to waive the detainee provisions if the Administration would prefer to confer upon operational al Qaeda terrorists the full range of Constitutional rights available to U.S. citizens in civilian criminal courts.

Of course, the way the Obama Administration has used such flexibility does not instill confidence. Bringing Ahmed Warsame to the United States this past summer is just the latest in a trend of avoiding the military detention system. The same approach was attempted with Khalid Sheikh Mohammad and his co-conspirators, as well as done with Ahmed Ghalani for his participation in the 1998 East Africa Embassy bombings.