Detention: Law of: Legislative Development

The New SASC Detention Bill: An Analysis of Changes and Issues in Two Key Sections

By Robert Chesney
Tuesday, November 15, 2011, 11:31 PM

On Tuesday, the Senate Armed Services Committee passed a new version of the controversial detainee provisions to be included in the National Defense Authorization Act for FY ’12. The text is here, thanks to Josh Gerstein at Politico, and a letter from Secretary of Defense Panetta objecting to certain aspects of the bill is here, also thanks to Josh. Below, I provide an overview of what is different – and what is or isn’t worth paying attention to – in relation to two provisions of the bill, the first of which (section 1031) expressly confers detention authority on the executive branch and the second of which (section 1032) purports to mandate the exercise of that authority for a subset of the otherwise-eligible persons (at least pending a decision as to what ultimately to do with the person—which could actually be a really, really brief period, as I explain below):

Section 1031: This is the provision expressly stating that the government has authority to use military detention in connection with the existing AUMF. 

What is different from the prior version:

Omitting Reference to US Persons  The definition of who may be detained (i.e., “covered persons”) is unchanged, but the bill no longer contains language that addresses the application of that authority to U.S. citizens or lawful permanent residents (the prior version was worded awkwardly, but was best read to provide express authority to apply the detention provision in such cases up to the limits permitted by the Constitution).

No Intention to Expand or Contract Existing Authority  The amended version does have new language expressly stating that the section should not be read to expand or limit “the authority of the President or the scope of the Authorization for Use of Military Force.”  Given the use of the disjunctive “or” rather than a limiting “under” or “pursuant to” in the midst of that sentence, this seems to be an indirect reference to the idea that the President may have Article II detention authority separate and apart from the AUMF (a position never advanced publicly by the current administration, though never expressly foresworn as a legal possibility either).  I’m sure that aspect will excite some comment, but it’s really not doing anything substantive and should probably just be ignored.

Congressional Reporting Regarding Detention Activity There also is a new section requiring briefing to “Congress” as to how the authority in this section is applied, including specifically the “organizations, entities, and individuals” to which it gets applied. On one hand, I appreciate the idea at work here – trying to keep tabs on how DOD interprets “associated forces,” for example.  But this language will need some work, I  think.  It’s not clear how often such reporting should occur or how detailed it must be.  And it might make sense to limit such reporting to certain committees.

Section 1032 – This is the section described as requiring reliance on military detention for a subset of the person eligible for detention under Section 1031.

What is different from the prior version:

Clarifying the Subset of Detainable Persons Subject to "Mandatory" Detention  The prior version provided that detention authority must be used for the subset of detainable persons who are determined to be members of al Qaeda or of “affiliated forces,” so long as those persons participated in the planning or carrying out of an attack.  That same general idea is carried forward in the new bill, except that “affiliated forces” has been replaced with “an associated force that acts in coordination with or pursuant to the direction of al-Qaeda.”  That’s an improvement, since the phrase “associated force” is the one familiar from current military usage and appears elsewhere in the bill, whereas “affiliated forces” is neither of those things.  Of course, we still lack clear metrics for the “associated forces” concept, which perhaps explains why the modifier “in coordination with or pursuant to the direction of al-Qaeda” was added. That’s actually a pretty substantial constraint; it might, for example, preclude application of section 1032 to an AQAP plotter barring good reason to believe that AQAP was not acting on its own initiative but rather at the specific direction of the original al Qaeda network, which won’t often be the case.

Requiring a Process for Making the Eligibility Determination and Controlling For Its Impact  A second major change is the requirement that the executive branch actually develop a system for making decisions as to whether a particular detainee falls under the section 1032 mandatory detention rule.  In the prior version, there was nothing about this, and it left open huge questions about what Congress meant when it referred to persons “determined” to fall into the category described above.  In this version, in contrast, the executive branch is required to develop procedures to (paraphrasing):

(i) identify the official(s) who will make the categorization decision and the process those officials will use to actually make the decision;

(ii) ensure that the 1032 requirement does not result in disrupting surveillance or other intelligence-gathering with respect to persons not  already in custody (i.e., addressing the this-will-force-us-to-roll-em-up-prematurely concern);

(iii) ensure that the 1032 requirement does not result in a change of custody in the midst of any interrogation session that is ongoing when the 1032 decision is made (a single session, of course, will only go on so many hours, and this provision at most only saves a few hours before the change would have to be made assuming the person is in, say, FBI custody beforehand);

(iv) ensure that the requirement does not attach to situations in which a third-country controls the detainee and we merely have been granted access; and

(v) ensure that a “national security waiver” can be considered and granted for circumstances in which the government wishes to transfer a detainee to a third country’s custody (as is provided for elsewhere in the bill).

The bottom line is that this set of obligations probably precludes the executive branch from getting cute with the 1032 eligibility determination by dragging its feet with respect to the decision in a particular case for a really long time.  That said, it is not as if it requires the executive branch to adopt procedures that ensure such decisions will be made within some specific number of minutes/hours/days/weeks/etc.

Is “Mandatory” Military Detention an Illusion, However? The interesting question all of this leaves open, I think, is whether the entire section 1032 system will prove to be a waste of time given that the actual obligation under 1032 is merely to hold such persons in military custody pending “disposition under the laws of war”...and that this actually leaves open the possibility of leaving someone in civilian custody.  To be sure, "disposition under the laws of war" sounds like it would exclude civilian prosecution as a disposition option, but in fact it does not.  As defined in the statute in section 1031(c)(3), the disposition options expressly include transfer of a person for trial before any “alternative court or competent tribunal with jurisdiction,” which could certainly be a civilian Article III court—and it does not say that this transfer can only occur on, say, the eve of trial.  As a result, there’s really nothing here to stop the executive branch from making a determination that a given person is in fact subject to section 1032 but then, at the exact same time, a further determination that the proper disposition option for the person is a civilian criminal trial.  In that case, the moment of mandatory military detention could begin and end simultaneously, and if the person is already in civilian custody he or she would stay right there.  From this point of view, section 1032 neither accomplishes what its supporters supposedly want nor what its opponents fear.