The bill would allow for the open-ended detention of anyone caught up in the “war on terror,” without trial or charges, including US citizens. This is the first explicit legislation to effectively abolish habeas corpus (the right to challenge unlawful detentions) and the constitutional rights to a fair trial (the Sixth Amendment) and due process (the Fifth Amendment).
Another provision requires that such individuals be taken into military custody, with an exception for US citizens. The military seizure of US citizens is left to the discretion of the executive branch. This means the effective abolition of the Posse Comitatus Act, which has restricted use of the military for domestic policing for more than a century.
The main concern of the administration was that the requirement for military custody could hamper actions of other agencies engaged in counterterrorism operations, such as the FBI and CIA. An earlier policy statement from last month outlined the White House position that the requirement on military detention was an “unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats that would tie the hands of our intelligence and law enforcement professionals.”
The White House has cited the extra-judicial assassination of Osama bin Laden and Anwar al-Awlaki (a US citizen) as evidence that there should be no restraints on the form through which executive power is exercised.
In response to White House pressure, House and Senate negotiators on Monday agreed to compromise language that states that nothing in the bill will affect “existing criminal enforcement and national security authorities of the FBI or any other domestic law enforcement agency…regardless of whether such… person is held in military custody.”
Another measure would allow the president to waive requirements on the grounds of “national security.”
The administration also expressed the concern that the explicit authorization of indefinite detention was not necessary, as the White House claims that this power is already incorporated in the Authorization to Use Military Force, passed in 2001 after the 9/11 attacks. Its inclusion in the bill could prompt judicial review. Carney’s statement declared, “Though this provision remains unnecessary, the changes ensure that we are merely restating our existing legal authorities and minimize the risk of unnecessary and distracting litigation.”
Commenting on the amended version, the American Civil Liberties Union said in a statement earlier this week: “The sponsors of the bill monkeyed around with a few minor details, but all of the core dangers remain—the bill authorizes the president to order the military to indefinitely imprison without charge or trial American citizens and others found far from any battlefield, even in the United States itself.”