On Detainee Law: A Word, but Not the Last, From Obama

The president promised to overlook certain provisions of the NDAA -- such as allowing the detention of U.S. citizens without trial -- but what are these assurances worth?



On the last afternoon of a mostly dismal year that saw him get kicked around endlessly by Congress, President Barack Obama signed into law its controversial defense bill, the one which infuriated civil libertarians and many other reasonable people. And, like his presidential predecessors, Obama issued a "signing statement" designed to undercut the legal authority for the measure, portions of which were themselves designed to undercut his ability to wage the legal war on terror. He got in the last word, you could say, at least until the fight over detainees goes back to the courts.

Sunday's headlines noted that the president signed the National Defense Authorization Act with "serious reservations," but those two words mean nothing as a matter of law. More relevant were the later clauses in which the White House gave notice about how it would interpret and enforce the ambiguous law. "Moving forward," wrote the president's tribunes, "my Administration will interpret and implement the provisions... in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded." There are four provisions which stand out.

Section 1021 of the act purports to codify an expansive view of the authority of the government to indefinitely detain under military custody anyone "who has committed a belligerent act" against the United States. The White House and its allies were able to neuter its potential impact upon U.S. citizens captured on U.S. soil before the passage of the measure. And the law itself concedes that it does not "limit or expand the authority of the President or the scope of the 2001 Authorization for Use of Military Force," the grandaddy of detainee laws at play here.

But the president nonetheless used the signing statement to:

clarify that my Administration will not authorize the military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret Section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Interesting, isn't it, that both the executive and legislative branches felt compelled here to explicitly reassure Americans that they cannot be given indefinite military detention if they become terror suspects? This has everything to do with the language of Justice Sandra Day O'Connor's 5-4 majority opinion in Hamdi v. Rumsfeld, the 2004 Supreme Court decision which held that the due process clause of the Constitution prohibited the government from indefinitely detaining a U.S. citizen under military custody.* (See Clarification below). The signing statement, like the language of Section 1021 itself, are designed to help shape the legacy of Hamdi the next time the matter comes before the justices. And there will be a next time.

Section 1022 of the act purports to require the presumption of military custody for any non-citizen terror suspects -- a presumption that would arguably deprive the Justice Department of the ability and the right to prosecute terror suspects in federal civilian courts. This is the center of gravity of the signing statement; it is here where the president, the constitutional law scholar, wants to make sure everyone knows that he doesn't agree with the premise of Section 1022 -- or with the power of Congress to authorize it. From the statement:

I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While Section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operation...

... As my Administration has made clear, the only responsible way to combat the threat of al-Qa-ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be jeopardized, our authorities (sic?) to hold dangerous individuals could be jeopardized, and intelligence could be lost.

Relentlessly practical. In other words, if the executive branch captures a non-citizen terror suspect tomorrow, and the Feds feel it makes more sense to let the FBI and the Justice Department deal with the suspect, that is what is going to happen regardless of the language of Section 1022. Remember, it wasn't just the Justice Department that objected to the language of Section 1022. The Pentagon did, too. And if those two parts of the executive branch agree on protocol for a particular terror suspect who exactly would be left to complain about Section 1022? The terror suspect? Only if he wants to fight for the right to remain in indefinite military custody.

Section 1027 is the provision through which Congress has reminded the White House that it will not tolerate the transfer to the United States of any of the detainees currently held at the prison at Guantanamo Bay, Cuba. But here, tellingly, President Obama would not commit to interpreting the section so narrowly as to permit the executive branch to transfer a Gitmo prisoner (to the United States for trial, for example). Instead, the American people get this from the signing statement.

I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests... Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

In other words, President Obama isn't willing to pick a legal fight with Congress over the constitutionality of a federal law that precludes the executive branch from prosecuting the Gitmo prisoners in civilian court. But the White House evidently is willing to pick such a fight with Congress over Section 1029 of the new law, which seeks to require the Attorney General to consult with the Pentagon before filing criminal charges against a terror suspect. No dice, says the President:

... Section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement Section 1029 in a manner that preserves the operational flexibility of our counter-terrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

You could call this signing statement a passive-aggressive attempt by the White House to define the detention measures the way it wants to. But you could say that about all presidential signing statements. What policies and practices presidents cannot achieve through Congressional politics they seek to tweak through these statements. What's interesting about this statement, what distinguishes it from many of the Bush-era signing statements, is that it seeks to expand rather than restrict the potential due process rights of the detainees. And that might make it more palatable to the courts.

I don't know whether the federal judiciary will be asked in 2012 to resolve the conflicts that now exist over these measures. And it's impossible to know now what detainee nuggets the 2013 defense authorization bill will contain. But it's also impossible to say today that the United States speaks with one voice when it comes to how it intends to treat terror suspects -- a sad state of affairs when you consider that Osama bin Laden is dead and the Twin Towers fell more than 10 years ago.

*As Scott Horton and other readers have pointed out, my initial description of Justice O'Connor's opinion in Hamdi goes too far. While it is true that the Court held that the Bush Administration was required to give Yaser Esam Hamdi more due process rights than it had previously afforded him, it was not accurate to say that a majority explicitly held that the Constitution precluded the government from indefinitely detaining a U.S. citizen. My apologies for the mistake.