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Will Congress Authorize Indefinite Detention of Americans?

By       Message Marjorie Cohn       (Page 1 of 3 pages)     Permalink    (# of views)   3 comments

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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.

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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."

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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.

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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.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. An updated edition of her book, "Drones and (more...)
 

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