Indefinite Detention: does the president have the power to imprison anyone he says is a terrorist?

• Author: Sullum, Jacob
• Position: Column

DO YOU SEE A problem with a law that authorizes indefinite military detention of anyone the president identifies as an enemy of the state? For President Barack Obama, the problem was clear: The law did not give him enough discretion.

In December, Obama signed the 2012 National Defense Authorization Act (NDAA), having dropped a veto threat after Congress added language promising that the law would not affect the FBI's "criminal enforcement and national security authorities." Obama, like his predecessor, wants the leeway to keep terrorism suspects in civilian custody, and maybe even give them a trial, if he so chooses. Those of us who are not the president are apt to be more concerned about the law's "affirmation" of his unchecked power to lock us up and throw away the key.

Defenders of the law's detention provisions say they merely acknowledge powers granted by the Authorization for Use of Military Force (AUMF) that Congress approved after the September II terrorist attacks. But unlike the AUMF, the NDAA explicitly affirms the legality of military detention "without trial." Furthermore, it says such treatment is permitted not only for "a person who planned, authorized, committed, or aided the terrorist attacks" or who "harbored those responsible" (language that echoes the AUMF) but also for anyone who joins or supports Al Qaeda, the Taliban, or "associated forces"--a much wider net. Another section of the bill creates a presumption in favor of military detention for a member of Al Qaeda or an allied organization who participates in planning or executing an attack or attempted attack. But it says that requirement "does not extend to citizens of the United States."

Taken together, these two sections mean military detention is authorized but not required for U.S. citizens. As Sen. Lindsey Graham (R-S.C.), a leading supporter of the bill, explained on the Senate floor in November, "the statement of authority to detain ... does apply to American citizens, and it designates the world as the battlefield, including the homeland."

In short, the law asserts the president's power to snatch anyone from anywhere, including a U.S. citizen on U.S. soft, and confine him in a military prison...