New legislation endows president with extraordinary powers of detention | Jonathan Weiler | Indy Week
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New legislation endows president with extraordinary powers of detention 

With relatively little fanfare and overwhelming bipartisan support, the U.S. Senate recently passed a large Pentagon spending bill that includes provisions that could significantly expand the scope and meaning of our war on terror. Questions remain about the impact of the bill on the disposition of terrorism cases involving U.S. citizens, specifically those arrested on American soil, as well as the degree of latitude the executive branch would retain in determining whether terrorist cases are tried in civilian courts or directed to military detention.

But what is not in dispute is that Congress has added a formal imprimatur in law to what both President George W. Bush and President Barack Obama have insisted on in practice: that we are permanently at war, the entire world is a battlefield and presidents should have extraordinary power to determine who is a "belligerent" on that battlefield and what can be done to such an individual.

Some background here: Immediately after the 9/11 attacks, Congress passed the Authorization for Use of Military Force (AUMF), directed against those responsible for perpetrating the attacks or for providing safe haven for those perpetrators. At the time, it was clearly understood that the AUMF was to be directed against al-Qaida and its sponsors, the Taliban government in Afghanistan. Ten years later, with a presence of more than 100,000 American troops in that country, the killing of Osama bin Laden and many other members of al-Qaida's top brass, our government has itself declared that al-Qaida is all but dead as an effective force.

Under such circumstances, one might imagine that now would be a good time to rethink the war on terror and to impose some constraints on its prosecution. Instead, the Pentagon bill includes provisions for extending the 2001 AUMF and states that "a person who was a part of or substantially supported al-Qaida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners" may be detained indefinitely by the military or killed. In other words, to be deemed a suspected terrorist under the meaning of this new authorization, a direct link to 9/11 is no longer required, though that attack was the specific justification for the original AUMF.

Furthermore, the new AUMF would be operative "until the cessation of hostilities." Given the open-ended nature of these hostilities and the disparate and difficult-to-define enemy in question, it's unclear that we could ever reach a point at which such hostilities would be deemed to have ceased. In other words, the new AUMF may open the door to permanent war and indefinite detention for anyone suspected of harboring ill intentions against the U.S. As Jon Stewart put it, "When the war on terror ends ... and terror surrenders ... and is no longer available as a human emotion—you're free to go."

Both defenders and critics of the legislation have argued that many of these features aren't really new, since the executive branch has for the past decade acted in ways consistent with the language just approved by the Senate. But their normalization and formalization remains deeply troubling. The Obama administration has made some noise about a possible veto of the bill; it remains to be reconciled with an earlier House bill containing similar language.

It is apparent that the administration's key objections relate to perceived constraints on its prerogative to prosecute the war on terror as it sees fit, rather than any principled objection to the prospect of permanent detention based on suspicion alone. In fact, President Obama has already embraced the core concepts embedded in the new legislation: a permanent war on a global battlefield and a president who can detain indefinitely or kill anyone she or he deems an enemy combatant, without having to judicially justify the decision.

The American Civil Liberties Union has warned that "in the context of a war against terrorism without specified enemies and geographic or temporal limitations, it is simply not possible, let alone lawful, for us to detain indefinitely everyone who we think may, at some point, present a danger." During the Bush years, such a prospect enraged many of the president's critics, including Sen. Obama, who repeatedly insisted that we are not a country that locks people up forever without informing them of the charges and giving them a chance to refute the charges in court.

Now that President Obama has embraced the same Bush/ Cheney principles he once decried, there has been some tendency among the president's supporters to shrug their shoulders. But even if you believe that President Obama is a judicious man who will exercise this authority with restraint and wisdom, you must see that this belief is irrelevant to the larger issue. Once asserted and codified, these powers are potentially available to all future presidents.

Some people find these concerns to be far removed from their daily lives. Implicit in that sense of detachment is the belief that only people who really did something wrong could ever be suspected of terrorist acts or intent. And if you don't have an Arabic surname, you likely feel doubly or triply removed from such concerns. But what we know about the actuality of the war on terror does not inspire confidence that we are identifying justly and reliably those who actually threaten our homeland. For the past several years, several dozen detainees at Guantánamo Bay have been granted habeas corpus hearings to determine whether they've been held lawfully. The most recently available data shows that, of 57 cases decided, 37 detainees—nearly two-thirds—have been granted release because there were insufficient grounds for their detention. And it is likely that many of the remaining inmates at Guantánamo, who've now been locked up for a decade, should never have been detained.

Our political elites, with few exceptions, seek to expand the government's policing authority, insisting that our enemies are everywhere and that we need to give our leaders maximum berth to protect us, irrespective of how their ever-expanding dominion might be abused, or whether such unaccountable power might be inimical to justice. As I have written before, there has been a steady erosion of a range of civil liberties in America in the past decade. We do not yet know precisely what practical effect this new legislation will have. But as a reflection of the degree to which Americans have already ceded what once would have been considered unimaginable powers for our government to possess, perhaps in perpetuity, the verdict is already in.

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