So what exactly does the bill do? It says that the president has to hold a foreign Al Qaeda suspect captured on US soil in military detention—except it leaves enough procedural loopholes that someone like convicted underwear bomber and Nigerian citizen Umar Abdulmutallab could actually go from capture to trial without ever being held by the military. It does not, contrary to what many media outlets have reported, authorize the president to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US. A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won’t be based on the authority in this bill.
So it’s simply not true, as the Guardian wrote yesterday, that the the bill “allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.” When the New York Times editorial page writes that the bill would “strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists and hand it off to the military,” or that the “legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial,” they’re simply wrong.
The language in the bill that relates to the detention authority as far as US citizens and permanent residents are concerned is, “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.”
As I’ve written before, this is cop-out language. It allows people who think the 2001 Authorization to Use Military Force against the perpetrators of the 9/11 attacks gives the president the authority to detain US citizens without charge or trial to say that, but it also allows people who can read the Constitution of the United States to argue something else. That’s why Sen. Dianne Feinstein (D-Calif.) has proposed legislation to make it clear that indefinite detention authority does not apply to US citizens arrested in the US—which at the very least, should force Congress to go on record about who exactly is opposed to detention without trial at the whim of the executive branch.
Does the defense bill change the status quo? Yes. Though detention of non-citizen Al Qaeda suspects captured in the US is now mandatory in name only, because of procedural loopholes that allow the president to avoid placing such a suspect in military custody, the bill nevertheless writes into law an assumed role for the military in domestic counterterrorism that did not exist before. This is not a power this president is likely to use, because neither he nor his top national security officials seem to think they even need it. A future US president, even one more enamored of executive power, might still not use it for similar reasons: Because his non-political advisers tell him it’s a bad idea.
Still, the reason supporters like Senator Lindsey Graham (R-S.C.) are happy with this bill is that it codifies into law a role for the military where there was none before. It is the first concrete gesture Congress has made towards turning the homeland into the battlefield, even if the impact in the near term is more symbolic and political than concrete.
But “symbolic” and “political” doesn’t mean “meaningless.” Codifying indefinite detention on American soil is a very dangerous step, and politicians who believe the military should have an even larger domestic counterterrorism role simply aren’t going to be satisfied with this. In fact, if there is another attack, it’s all but certain they will hammer the president should he choose not to place the suspect in military detention.
There really is no telling where inertia brings us from here. Graham and his colleagues have made no secret of the fact that they believe the president should (and does) have the ability to detain American terrorism suspects captured in the US indefinitely, and they may even have enough votes in Congress to make it happen some day. At that point, the only defense for Americans will be the Constitution and a Supreme Court willing to read what it says.
UPDATE: In case it’s not clear, I still think the president should veto the bill. What it does is bad enough. It just doesn’t do what a lot of people are saying it does.