The House (Further) Militarizes U.S. Detention Policy

Jonathan Hafetz

In what has become an all too familiar pattern, lawmakers are again seeking to exploit the National Defense Authorization Act (NDAA), which establishes Pentagon policy and spending levels, to enact senseless measures aimed at demonstrating how tough they are on terrorism. On Friday, the House approved two amendments to the House Armed Services Committee (HASC) version of the FY 2013 NDAA. Both amendments threaten to entrench and expand military detention.  One amendment, proposed by Rep. Louis Gohmert (R-Tex.), significantly dilutes habeas corpus and appears to authorize the indefinite military detention of individuals seized in the United States.  The other amendment, proposed by Rep. Tom Rooney (R-Fl.), would bar civilian trials for individuals who fall within the broad jurisdiction of military commissions.

The Gohmert amendment's purported aim was to protect the rights of all persons lawfully in the United States by ensuring their access to habeas corpus.   But this protection was already clearly established under both federal statute and the Constitution--not only for those lawfully in the United States, but for all persons in the country, whose statutory rights the Gohmert amendment now calls into question with its lawful-unlawful distinction.  The Gohmert amendment's real purpose, however, was to deflect and defeat a bi-partisan amendment proposed by Adam Smith (D-Wash.) and Justin Amash (R-Mich.) that would have actually done something to protect individual rights: by clarifying that existing law does not authorize the military detention of individuals arrested in the United States.    Not only was the Smith-Amash amendment voted down, but also the Gohmert amendment now threatens the status quo by suggesting that military detention is authorized.  Additionally, the Gohmert amendment could allow domestic military detention without habeas corpus for up to thirty days, thus undermining the current statutory regime, under which the writ is immediately available to anyone detained without trial.  In fact, the Gohmert amendment would help lay the foundation for secret imprisonment and enforced disappearance  (The only "protection" it provides is that the President notify Congress within 48 hours after subjecting a person to military detention).  Steve Vladeck has an excellent post at Lawfare on the amendment's flaws.

The Rooney amendment, meanwhile, picks up where opponents of Article III courts left previously off.  The amendment seeks not merely to preserve military commissions as an option (the Obama administration position), but to expand them by mandating their use in lieu of federal criminal prosecutions. (For the amendment's text and a further discussion of its problems, see Bobby Chesney's post here).  Every top counter-terrorism official in the government opposed attempts to enact a far less draconian mandatory military detention provision in the 2012 NDAA, and the Rooney amendment will no doubt face similar opposition.  The amendment underscores, nevertheless, the extent to which the military detention and trial of terrorism suspects has become normalized and how each legislative cycle or thwarted terrorist plot prompts new calls to expand military jurisdiction at the expense of federal courts.

The attention and support garnered by the Smith-Amash amendment, to be sure, reflects an increasing concern among both conservatives and liberals about the risks of domestic military detention.  Yet, this bi-partisan groundswell remains insufficient to affect a change in the direction of U.S. national security policy. Proponents of further militarizing U.S. detention practice engaged in election-year fear mongering not only to defeat the Smith-Amash amendment but to approve a measure that further erodes constitutional protections.  The House vote suggests that until a tipping point is reached, the roots of military detention will only grow deeper with each attempt to legislate in this area.
Posted 10:08 AM by Jonathan Hafetz [link]