The fuss over military detention

By Scott Forsyth The Daily Record Newswire 'Tis the silly season -- the Iowa caucuses are two weeks away -- and it is necessary to dissect another idea being hotly debated by Republicans and Democrats alike -- military detention. As of Monday, awaiting the president's signature or veto was the National Defense Authorization Act. It appropriates $662.4 billion for the activities of the Department of Defense during the current fiscal year. Tucked in the NDAA are two provisions that, depending on who is doing the talking, either permit or require the indefinite military detention of suspected terrorists. Citizens of the United States may or may not be exempt. Moving past the talk, it is not clear what the provisions achieve. The key provision does require the military to hold "in custody pending disposition under the law of war" "any person" who is part of al-Qaida or "an associated force" and who participates in an attack against the United States or a coalition partner. Disposition under the law of war may mean detaining a covered person "without trial until the end of hostilities" with terrorists. Congress will decide when we have attained that date. Or a covered person may have his case disposed of by trial before a military commission, trial before a civilian court or release to a foreign country. The provisions do not place any territorial limit on the apprehension or detention of a covered person. The military may stop a person anywhere in the world, including inside the United States, and detain him anywhere in the world, including the United States. Various civil rights groups, including the ACLU, have sharply criticized the provisions and the president's apparent acceptance of them. To quote Human Rights Watch, "Obama will go down in history as the president who enshrined indefinite detention without trial into law." On the other side of the aisle, Sen. Lindsey Graham asserts that "our military should be deeply involved in fighting these guys at home or abroad." If one of the "guys" happens to be "an American citizen," he has "betray(ed) his country" and should "not be given a lawyer," Graham said. The senator conveniently overlooks the subsection that explicitly exempts citizens from the military custody requirement. The president may waive the requirement for non-citizens if doing so is "in the national security interest." Finally, the FBI and local police retain the power to investigate threats to security and detain persons in connection with the investigation, pursuant to federal and state law. Thus, someone like underwear bomber Umar Abdulmutallab may still go from interrogation to trial without ever passing through military hands. These loopholes in the provisions have made "mandatory" military detention really optional. Maybe President Obama wants this flexibility and maybe the Republicans want more opportunities to beat up the president for not following their wishes and transferring to military control suspected terrorists. What is much more distressing is that President Obama, a majority of our representatives, and 61 senators believe that indefinite military detention is a good idea. Before the NDAA, Obama, like his predecessor, relied on the 2001 resolution of Congress authorizing the use of military force against terrorists to justify indefinite detention. One court upheld this position, Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), and one court rejected it, Padilla v. Rumsfield, 352 F.3d 695 (2nd Cir. 2003). Both decisions were vacated or reversed on other grounds. Several scholars, such as John Yoo, argue that the president need not rely on the resolution. Implicit in his constitutional power to wage war is the authority to detain combatants, including suspected terrorists, indefinitely. In office, Obama has not backed away from this argument. Human Rights Watch may be wrong about Obama enshrining indefinite detention, unless you interpret enshrine to mean codify. However, it is very right to say that the enactment of the provisions will do "enormous damage to the rule of law both in the U.S. and abroad." Terrorists act without any respect for the rule of law. We cannot stoop to their level in the name of national security. We can be both safe and free without detaining persons indefinitely. ---------- Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Published: Fri, Dec 23, 2011