Detention: Law of: Legislative Development

Stephen Voss Responds to Our FAQ

By Benjamin Wittes
Thursday, December 22, 2011, 4:25 PM

Stephen Voss, a philosophy professor at Bogazici University in Istanbul, writes in with the following response to Bobby's and my NDAA FAQ:

The current NDAA contains, in section 1021, legislation that may drastically expand the government’s detention authority. The question is without doubt grave: I suspect that we may be viewing the end of the dream of 1776. I write in order to further the discussion of this question begun by Benjamin Wittes and Robert Chesney. I choose this article because it makes the best case I’ve seen that section 1021 does not expand detention authority. I believe this view is mistaken.

My own view is the one that the authors call “sheer, unadulterated nonsense.” I’ll argue here that if this article really is the best case that can be made against my view, then (1) section 1021 opens the door to indefinite detention of just about anyone the President--this President but of course any future President--personally thinks he has reason to detain, and (2) this authority goes beyond anything that current law or court precedent now gives him.

Mr. Wittes and Mr. Chesney raise exactly the question that matters: “Does the NDAA expand the government’s detention authority?” Their answer is “Nope.” Their reason is that “under current law, the Obama administration claims the authority to detain” exactly the people that section 1021 gives the President authority to detain.

The authors are right that the President has claimed the authority to detain just about anyone he wishes. That’s bad enough. But it’s one thing to claim you have that authority. It’s another thing for the law to give you that authority.

The “current law” that Obama uses in support of his claims is the 2001 Authorization for Use of Military Force (AUMF). Does the AUMF go as far as section 1021? Do the courts accept Obama’s claim that he already has section 1021 authority? We need to look at both of these questions. I believe that section 1021 goes beyond both what current law states and what the courts currently authorize.

1. Here is the totality of what the AUMF authorizes:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against theUnited States by such nations, organizations or persons.

The AUMF explicitly targets two kinds of people--those who helped with the 9/11 attacks and those who harbored people who did. Section 1021 targets the same people and then adds an entirely new category: people who have “substantially supported” forces “associated” with al-Qaeda or the Taliban. Two points. (1) Many people think those two quoted terms are so vague that a court could let the law apply to you or me. If a future President seized the opportunity, how sure are you that the courts would take your side and not his? (2) Be that as it may, there’s no question that section 1021 places an entirely new category of people in legal jeopardy.

2. Do the courts support Obama’s claims that he already has section 1021 authority? At this point I am going to assume that Mr. Wittes and Mr. Chesney have made the best case that can be made. Here is what they have to say:

the courts have had a decidedly mixed reaction in the pair of cases involving persons captured within the United States, but as for persons captured abroad, they have largely endorsed the government’s position.  The D.C. Circuit, in fact, has tentatively adopted a definition of the class detainable under the AUMF that is, if anything, broader than what the administration seeks.

Please look at the language they use: “decidedly mixed” … “largely endorsed” … “tentatively adopted.” If section 1021 is made the law of the land, all of that uncertainty will be removed.

 The NDAA says more than the AUMF says. There is certainly no unequivocal endorsement within the court system of that additional authority. In a perfectly clear way, NDAA expands the government’s detention authority.

And that is why, even after a sympathetic reading of the best case the defenders of President Obama can make, I continue to suspect that the 1776 dream is over.