01/12/2012 11:14 am ET Updated Mar 13, 2012

A Peculiar and Pernicious Myth: Domestic Military Detentions

As reported here yesterday, there is an extraordinary claim being widely circulated: that the defense bill recently signed by the president authorizes the detention without charge of Americans and other terrorist suspects found in the United States. That is simply untrue. While some senators hoped the bill would authorize such detention, the language of the bill is quite explicit that it does not "expand the authority of the president" or "affect existing law or authorities relating to the detention .... of persons captured or arrested in the United States." No such authority existed before the signing of the bill and the bill didn't create any.

Yesterday was the tenth anniversary of President Bush's opening of the Guantanamo prison, and it is three years since President Obama promised to close the prison. Despite the bipartisan consensus about the national security benefits of closing Guantanamo (President Bush, candidate McCain, and former Secretary of Defense Colin Powell were all in support), Congress has imposed almost insurmountable obstacles to doing so, most recently in the defense bill signed by President Obama on December 31. But the bulk of public attention and outcry about this bill has not been focused on the absurd and counter-productive congressional roadblocks to closing Guantanamo. Instead there has been an almost hysterical over-reaction to other detention provisions in the bill, which simply do not do what has been reported. The new legislation does NOT authorize the detention without charge of Americans or anyone else seized in the United States.

It is true that during the debates on the defense bill, some senators -- especially Lindsay Graham -- argued that the United States is a battlefield and that consequently any suspected terrorist seized here could be subject to military detention. But Senator Graham's speeches cannot put language into the legislation that isn't there. And the legislation itself could not be clearer that it doesn't change existing law and therefore doesn't authorize detention of Americans that was not previously authorized.

The peculiar aspect of the advocacy and coverage of the legislation is that it simply ignores the repeated references in the bill to reaffirming, but not expanding existing law. Existing law is found in the September 2001 Authorization to Use Military Force (AUMF) enacted by Congress after the 9/11 attacks. As the Supreme Court ruled in 2004, that AUMF authorized military detention of persons, including citizens, fighting in Afghanistan against our armed forces and allies. The Supreme Court explained that the law of war has always provided that enemy fighters captured in the course of hostilities can be indefinitely detained without charge until the end of the hostilities. (In this case, the hostilities in Afghanistan clearly haven't yet ended.)

But since enactment of the AUMF, civil liberties and human rights groups, including my own, have been clear that it did not authorize detention of individuals seized in the United States as suspected terrorists. And while the Bush administration initially claimed such authority, even it backed down in the face of public opposition and judicial skepticism. After the 9/11 attacks, President Bush issued a Military Order on November 13, 2001, which claimed the authority to pick up non-citizen "suspected terrorists" inside the United States and hold them in indefinite military detention without charge. In the spring of 2002, his Attorney General, John Ashcroft announced that they had taken an American citizen arrested in Chicago (Jose Padilla) and thrown him in a military brig to be interrogated and detained without charge. In 2003 the Bush administration took a non-citizen about to be tried on criminal charges (Ali al-Marri) and threw him in the same kind of military lock-up. From the very beginning, there was public outrage about these detentions and, tellingly, the Bush administration charged all suspected terrorists subsequently found in the United States in criminal court. The Bush administration eventually transferred Padilla, the citizen, to civilian court, when it appeared likely that the Supreme Court would take his case and that the government would lose. Al-Marri, the non-citizen was still in military prison when President Obama was inaugurated. On Obama's second day in office, he ordered a review of the case and al-Marri was promptly released from military custody and transferred to civilian court.

Since then, the Obama administration has continued trying all terrorist suspects seized in the United States, citizens and foreigners alike, in criminal courts. Just this week, the Justice Department announced the indictment of an American accused of plotting on behalf of al Qaeda. It doesn't seem that the administration even considered holding him in military detention instead, notwithstanding passage of the defense bill. Indeed, since taking office senior national security officials in the Obama administration have made clear that criminal law detention will continue to be the universal practice in the United States because "adhering to our values and our laws" strengthens our national security.

In light of this history and the explicit statutory language that the defense bill does not change existing law, it is astonishing that President Obama is now being attacked from all sides -- The Daily Show, the New York Times editorial page, the ACLU, Rush Limbaugh and Rep Ron Paul -- for allegedly signing new legislative authority for the military detention without charge of citizens and others picked up in the United States. The plain fact is that the new legislation changes nothing: the only military detention authority that the Obama administration has, or claims to have, is that conferred under the law of war by the 2001 AUMF and that authority simply doesn't exist for persons picked up inside the United States.

The myth that President Obama has signed legislation expanding detention authority seems intended by some to be used in the 2012 presidential election. Harder to understand is why opponents of such authority would perpetuate the myth that they've already lost the fight and domestic detention authority is somehow now the law of the land. That myth itself, unlike the legislation, will make it easier if any future President wants to ignore the law and the Constitution and start locking Americans up without trial. But perhaps the most pernicious effect of the myth is that in other countries, governments and human rights advocates alike will mistakenly believe that the United States and President Obama have surrendered to those who believe that military detention rather than criminal law enforcement is the way to respond to domestic terrorism, making the fight for human rights in those countries that much harder.