Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely

Marty Lederman

Yesterday I explained that the definition of "unlawful enemy combatant" (UEC) in the latest draft of the detainee bill was so ridiculously broad and open-ended that it could not possibly be intended to establish the authority of the Executive to militarily detain all persons so defined.

But it appears I underestimated the gall and recklessness of the Administration and Congress, because there seems to be a fairly widespread understanding that the definition would do just that. Even Human Rights First seems to agree that "unlawful enemy combatants" would be subject to indefinite detention.

Most of the attention in the press has focused on subsection (i) of the definition, which would designate as an UEC any "person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." And that subsection is, indeed, broad, and fairly indeterminate, depending on how "materially supported hostilities" is interpreted (something that the Administration apparently could do without much or any judicial review).

But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any person "who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Read literally, this means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to "hostilities" at all.

This definition is not limited to Al Qaeda and the Taliban. It's not limited to aliens -- it covers U.S. citizens as well. It's not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it's not even limited to a time of war or armed conflict; it could apply in peacetime.

Therefore if, as everyone is assuming, this definition does establish who may be detained by the military outside the civilian justice system, it would quite literally give the Secretary of Defense the statutory authority to detain just about anyone he wants, indefinitely. And if that's the case, then the habeas-stripping provision would really be the least of it, because even with all the due process and habeas protections in the world, it would be almost impossible to challenge the grounds on which someone is detained if the Executive itself can establish what the permissible grounds for detention are. [NOTE: I should clarify that what I wrote yesterday remains true: The bill itself does not state, in so many words, that all "unlawful enemy combatants" may be detained until the end of hostiltiies. Indeed, it doesn't offer much of a reason at all for defining "unlawful enemy combatant." Thus, the bill could -- and perhaps should -- be construed not to establish any detention authority. But many in Washington this week fear that the Administration will read the new definition to implicitly establish a new detention authority. If -- but only if -- the bill did so, it would be an indefensible delegation to the Executive on a vital question of suppressing individual liberty. That's the (conditional) thrust of this post.]

In theory, there would be some limits on this detention power, but they would come from outside the statute itself. Three possibilities come immediately to mind.

First, presumably a detention would have to comply with the laws of war. There's a basic presumption of statutory construction that Congress does not intend for the U.S. to violate customary international law (the Charming Betsy canon); and that presumption would be especially stong here, seeing as how the principal purpose of the bill as a whole is to make provisions for punishing violations of the laws of war. As the Court suggested in Hamdan, it would not make much sense to assume that Congress intends to authorize violations of the laws of war via the very statute that establishes the terms on which we will punish others for violating those laws. (Moreover, there's actually a serious question whether Congress has the constitutional power to pass a statute that violates the laws of war. The idea that a statute can supersede the laws of war might now be commonplace, but it's actually a fairly recent notion. For most of U.S. history it was assumed by all three branches of the federal government that the laws of war delimited the constitutional war powers of Congress and the Executive -- and the Supreme Court has never said otherwise. In any event, even if that argument would fall on deaf ears in the modern Court, it provides yet another very strong reason why this new bill should not be construed to authorize detention (or any other conduct) in violation of the laws of war.)

Second, the Constitution would set some limits on who could be detained, at least with respect to U.S. citizens and persons aliens detained domestically (and possibly even with respect to aliens detained overseas, depending on whether the Court holds that they have Fifth Amendment protections -- a very important and unresolved pending question).

Finally, one might argue that the definition in this bill cannot operate of its own force, but instead must be read in pari materia with a distinct, separate authorization to use military force, such as those Congress enacted authorizing the use of necessary and proper force against Al Qaeda and the Taliban, and in Iraq -- so that the only UECs who may be detained are those fairly encompassed by the AUMF in force at a particular time (in this case, only persons sufficiently associated with the groups and nations responsible for the 9/11 attacks).

The problem with all three of these potential limiting principles, however, is that they would be applied in the first instance by the Bush Administration (which has demonstrated an eagerness to (mis)read such limits exceedingly narrowly), and this bill would significantly restrict the ability of detainees -- especially aliens -- to seek effective review of such decisions.

* * * *

Choosing the most indefensible provision in this bill is a tall order -- there are many worthy candidates. But a provision that would grant DoD virtually unlimited discretion to detain "unlawful enemy combatants," as defined by Donald Rumsfeld himself, would be an awfully formidable candidate for that dubious honor.
Posted 8:55 AM by Marty Lederman [link]