Criminal charges were eventually brought against Padilla in 2005. He had been held in isolation for more than three years and tortured while in custody.
Padilla was tried and convicted in 2007 of conspiracy charges and providing material support to terrorism, and sentenced to 17 years imprisonment. In 2014, his sentence was increased to 21 years. Meanwhile, the Fourth Circuit and the Second Circuit US Courts of Appeal came to opposite conclusions about whether an American citizen apprehended on US soil could be held indefinitely as an enemy combatant.
"John Doe" is another American citizen detained by the US government. In September 2017, the US-Saudi citizen was named an enemy combatant for allegedly fighting for ISIS and has been held in military custody in Iraq ever since. Although the 2001 AUMF never mentioned ISIS, the government used it as a basis to detain Doe. In April, the Department of Defense attempted to transfer Doe to Saudi Arabia and avoid a judicial ruling in the case, but a federal judge in Doe v. Mattis blocked the move.
It is not clear how passage of the proposed 2018 AUMF would affect Doe's case.
Does Defense Authorization Act Permit Indefinite Detention?
There is a 1971 US statute that says, "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." An AUMF is an Act of Congress.
Another Act of Congress is the National Defense Authorization Act for fiscal year 2012 (NDAA). Relying on the 2001 AUMF, the 2012 NDAA purported to codify the president's authority to hold US citizens in military custody indefinitely.
Section 1021 of the NDAA says, "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
When he signed the NDAA, Barack Obama declared in a signing statement that section 1021 does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force," pledging that "my Administration will not authorize the indefinite military detention without trial of American citizens."
Obama's statement implied that while a president does have the power to indefinitely detain Americans, he chose not to exercise that power.
Sen. Lindsey Graham (R-South Carolina) supported the NDAA, stating that it would "basically say in law for the first time that the homeland is part of the battlefield," adding that people could be held without charge by the military, "American citizen or not."
Noam Chomsky, Daniel Ellsberg, Chris Hedges and other journalists and human rights activists sued the US government, claiming the 2012 NDAA would have a chilling effect on their freedom of speech because they could be arrested. A federal district court judge found section 1021(b)(2) unconstitutional and issued a permanent injunction prohibiting the government from relying on it.
But the Second Circuit Court of Appeals lifted the injunction in 2013, stating that section 1021 of the NDAA "has no bearing on the government's authority to detain American citizen plaintiffs" because "Section 1021 simply says nothing about the government's authority to detain citizens."
The 2018 AUMF Might Be Used to Indefinitely Detain Americans
Nothing in the 2018 AUMF would prevent the president from adding an American organization or individual to the list set forth in the bill, according to Christopher Anders of the ACLU.
The 2018 AUMF has no expiration date. Every four years, the president would be required to give Congress a proposal to repeal, modify or maintain the authorization. Once again, it puts the onus on Congress, by a two-thirds majority, to take contrary action.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
1
1
1
