No, the NDAA Does Not Give Unreviewable Discretion to Detain

By Robert Chesney
Thursday, December 1, 2011, 3:50 PM

I always read what Conor Friedersdorf has to say over at the Atlantic.  He's thoughtful and focused on the merits, and offers an important libertarian perspective on matters including the NDAA debate.  I do think his most recent post is way, way off the mark, however.

In a post titled "Congress Is Poised to Let Obama Imprison Anyone He Wants," and subtitled "Worse than the PATRIOT Act, new legislation would allow the president to detain Americans without evidence, charges, or a trial, as long as they're first declared terrorists," Conor makes the bill sound far, far worse than it actually is.  Specifically, he suggests that the bill authorizes the president to detain anyone whom the president simply declares to be a terrorist, without judicial review:

Congress is poised to affirm that President Obama and his successors can imprison whomever they want, for as long as they want, on no authority but their own, so long as they first assert that the person in question is a terrorist. They needn't present evidence, or persuade a judge, or get a majority of votes from a jury. Just whispering "he's a terrorist" is enough.

Yes, even if the suspect is an American citizen.

This is simply not so, however, given the availability of habeas corpus review.  Any citizen held in military custody anywhere, regardless of where captured, will have such review.  Aany non-citizen captured in the United States will have such review.  And though there is still uncertainly surrounding the question, it is most likely the case that any non-citizen captured somewhere other than the Afghan combat zone would get habeas review as well.  Only combat captures of noncitizens in Afghanistan are, on this view, subject to executive discretion alone, as has literally always  been the case in all combat zones in which the U.S. has ever taken prisoners.

Some readers will say in response to this that habeas review is mere window dressing, citing the string of victories the government has enjoyed in the D.C. Circuit of late.  I disagree with that view very much.  There is a lot of room for debate about whether the Circuit's jurisprudence draws the line correctly in terms of figuring out what counts as proof that a person has become part of al Qaeda or the Taliban or associated forces, but the idea that the status quo leaves the government with discretion, in practice, to pretextually detain "domestic enemies" is simply not tenable, in my view.