Most Popular Choices
Share on Facebook 24 Printer Friendly Page More Sharing
OpEdNews Op Eds    H2'ed 5/12/18

Will Congress Authorize Indefinite Detention of Americans?

By       (Page 1 of 3 pages)   3 comments
Message Marjorie Cohn
Become a Fan
  (13 fans)

From Smirking Chimp

Fight Indefinite Detention
Fight Indefinite Detention
(Image by YouTube, Channel: The Daily Conversation)
  Details   DMCA

Under the guise of exercising supervisory power over the president's ability to use military force, Congress is considering writing Donald Trump a blank check to indefinitely detain US citizens with no criminal charges. Alarmingly, this legislation could permit the president to lock up Americans who dissent against US military policy.

The bill that risks conveying this power to the president is the broad new Authorization for Use of Military Force (AUMF), S.J.Res.59, that is pending in Congress. Senate Foreign Relations Committee chair Bob Corker (R-Tennessee) and Democratic committee member Tim Kaine (Virginia) introduced the bipartisan bill on April 16, and it has four additional co-sponsors.

This proposed 2018 AUMF would replace the 2001 AUMF that Congress gave George W. Bush after the September 11 attacks. Although the 2001 AUMF authorized the president to use "all necessary and appropriate force" only against individuals and groups responsible for the 9/11 attacks, three presidents have relied on it to justify at least 37 military operations in 14 countries, many of them unrelated to 9/11.

But the 2018 AUMF would codify presidential power to make war whenever and wherever he chooses.

S.J.Res.59 allows the president "to use all necessary and appropriate force" against Iraq, Afghanistan, Syria, Yemen, Libya and Somalia, al-Qaeda, ISIS (also known as Daesh), the Taliban and their "associated forces" anywhere in the world, without limitation.

"Associated forces" is defined as "any organization, person, or force, other than a sovereign nation, that the President determines has entered the fight alongside and is a co-belligerent with al Qaeda, the Taliban, or ISIS, in hostilities against the United States or its coalition partners."

However, the bill contains no definition of "co-belligerent." A president may conceivably claim that a US citizen who writes, speaks out or demonstrates against US military action is a "co-belligerent" and lock him or her up indefinitely without charge.

Under the new AUMF, the president could tell Congress he wants to use force against additional countries or "associated forces" that are not listed in the bill. It would put the burden on Congress to say no by a two-thirds vote, a virtually impossible margin to achieve in the current political climate.

The International Covenant on Civil and Political Rights -- a treaty the United States has ratified, making it part of US law under the Constitution's Supremacy Clause -- forbids arbitrary detention without charge.

Supreme Court Hasn't Sanctioned Indefinite Detention for US Citizens

Nevertheless, in the 2004 case of Hamdi v. Rumsfeld, the Supreme Court upheld the enemy combatant designation of US citizen Yaser Hamdi, who had been apprehended in Afghanistan in 2001. But the Court limited its holding to people fighting against US forces in Afghanistan, and did not include the broader "war on terrorism."

The Court also stated that US citizens held as enemy combatants must be provided due process to contest the factual basis for their detention before a neutral decision maker.

Justice Sandra Day O'Connor wrote for the Court's plurality, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens," adding, "even the war power does not remove constitutional limitations safeguarding essential liberties."

The Supreme Court has not ruled on whether a US citizen who is apprehended in the United States can be detained indefinitely. It declined to decide the case of Jose' Padilla, who was arrested at Chicago's O'Hare International Airport in 2002 and held in military custody as an enemy combatant by the Bush administration, relying on the 2001 AUMF. The Court ruled that Padilla's habeas corpus petition was mistakenly filed in New York instead of South Carolina.

Next Page  1  |  2  |  3

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).

Must Read 1   Well Said 1   Supported 1  
Rate It | View Ratings

Marjorie Cohn Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)
 

Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Writers Guidelines

 
Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

STAY IN THE KNOW
If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEd News Newsletter
Name
Email
   (Opens new browser window)
 

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Stanford Antiwar Alums Call for War Crimes Investigation of Condoleezza Rice

Robert Mueller Is Moving Toward Donald Trump

"Big Brother is Watching You" -- Beyond Orwell's Worst Nightmare

Bradley Manning Treatment Reveals Continued Government Complicity in Torture

Obama's Af-Pak War is Illegal

Obama Spells New Hope for Human Rights

To View Comments or Join the Conversation:

Tell A Friend