Detaining US citizens: How did we get here?

The US Senate is pushing to give the military the option of indefinitely detaining US citizens without trial.

Anwar al-Awlaki
The Obama administration defends its right to kill US citizens, such as ‘terror’ suspect Anwar Al Awlaki [EPA]

Aziz Rana, professor of constitutional law at Cornell University, explains the significance of provisions in the 2012 National Defense Authorisation Act that define the entire world as a battlefield, allowing for open-ended detainment of US citizens, without a trial.

Rana tells Al Jazeera that these provisions are merely the latest round in a long battle between Congress, the executive branch, and rights activists.

On the executive branch versus civil liberties:

“One of the positions in the legal community, for example, around the assassination of [Anwar] Al Awlaki, is that this is a constitutional violation.

A new US law will declare the world a battlefield, making virtually anyone vulnerable to indefinite military detention. Read more

But the executive branch has pretty systematically defended this – not that it can, under the Constitution – but it has systematically defended its ability to pursue a variety of different practices.

For example, various officials in speeches and statements have implied that the battlefield extends beyond Afghanistan or Iraq and indeed may be global. If an individual is suspected of engaging in terrorism but is in a friendly or non-hostile country – such as Yemen – that still would count as the battlefield.

So the executive branch is already defending the idea of the world as a battlefield.

They’re also already defending the idea that you can extinguish citizen rights in various places if someone is suspected of being a terrorist. So, for example, Al Awlaki was a US citizen, and the claim is that you can engage in a targeted assassination even of a US citizen that contests whether or not he or she is a suspected terrorist.

There are these practices on the ground that have been backed up by a series of Executive Branch statements, legal opinions, speeches, et cetera. And the thing that’s really telling about the current climate in the US, is that there has been very little judicial pushback and very little popular or political pushback.

So, for example, in the context of Al Awlaki, his family attempted to raise the legality of the fact that he was on a targeted assassination list last December in a case before the Federal court, and that case was dismissed on ‘justiciability’ grounds, specifically that [Al Awlaki’s] father didn’t have standing to sue on his son’s behalf. Although the decision never reached the merits of the case, the judge also seemed to indicate that on the merits he would have sided with the Obama administration under the ‘state secret privilege‘.

The courts were unwilling to address the underlying claims that were being presented, to there are questionable practices that are being pursued, but there hasn’t been much institutional or political pushback.”

Codification of rights violations

“The concern, potentially, with codification [of indefinite detentions without trial] is a longstanding debate on whether or not it’s better for emergency practices to be discretionary – in other words, they’re being pursued unilaterally by the Executive Branch – or to actually be codified.

The claim about the value of practices being codified is that if these practices get codified, they’re under some form of statute, then there’s some process that attaches to it, there’s some clarity about what the various institutional actors can and cannot do.

The critique on the other side is if what you’re codifying, if the statues are giving legal imprimatur, the Congress’ stamp that we already think of as deeply problematic because they contradict civil liberties and civil libertarian goals – then, in a sense, the process can be quite coercive.

There’s nothing about having a codified framework that makes it less likely to infringe on rights.

Think comparatively. A place like Egypt…where you have emergency laws that create an infrastructure of authoritarian rule. Just because it exists in the law, it doesn’t mean that it necessarily going to be rights-protective.

These are two problematic options. One option is discretionary power as articulated by the executive branch, but with very little institutional pushback from the judiciary or the public at large, or new statutory frameworks that validate these processes as articulated by Congress but that are themselves quite coercive.

Manipulation of case law

“The Hamdi case [Hamdi v. Rumsfeld, 2004] where you had a US citizen of Saudi decent, who was captured on the [Afghan] battlefield by the Northern Alliance and turned over to US custody – he was initially sent to Guantanamo before they realised he was a US citizen, and then he was imprisoned in a military brig in South Carolina.

The legality of his detention ended up going all the way to the Supreme Court. … the opinion by Justice O’Connor, which became the law of the case, is that you can detain even a US citizen as an enemy combatant, and that detention can be for the duration of hostilities. But there have to be certain procedural safeguards that are provided to the individual that’s being detained.

Now, O’Connor, when she wrote that opinion, when she was talking about the duration of hostilities, she was actually attempting to limit or constrain – though not ultimately successfully – the framework that had been applied by the Bush administration. Because the Bush administration’s framework was that the war on terror is a global war, and that it’s going to last indefinitely, perhaps forever. 

And she [O’Connor] was trying to focus on the fact that, no, the battlefield is Afghanistan, and the reason that this person can be detained is because there’s an authorisation for the use of military force that allows an individual to be picked up in Afghanistan. And that detention lasts as long as there are extensive military operations in Afghanistan.

Now, what we’ve seen since then is that her language was still not specified enough, like when do military operations in Afghanistan end? We’ve been involved in various phases in war there for now a decade and so there is still the implication that hostilities can be long-standing and permanent.

And the way that both administrations [Bush and Obama] have interpreted that language is by using the language from the Hamdi case to essentially justify near-permanent detention, because hostilities are endless.

What you see in the [NDAA] bill is the effort to use phrases from cases in order to justify the practice, but to strip out in various ways the meaning of the phrase that might have limited the reach of detention powers.” 

Source: Al Jazeera