Despite End to Afghan War and (Maybe) the AUMF, Obama Upholds Indefinite Detention

John Glaser, April 21, 2014

Spencer Ackerman has a great piece up at the Guardian exploring what is likely to happen to the government’s legal justification for holding people under indefinite detention at Guantanamo Bay once the U.S.’s combat operations in Afghanistan are over in December. The detention system exercised by the Bush and Obama administration, according to Ackerman, “may grow legally tenuous after December.”

Notably, numerous human rights groups intend to challenge the Gitmo system anew after December:

“US courts might go further. Once there is no battlefield, what ‘war’ is left?” said Andrea Prasow of Human Rights Watch.

“I’m not confident that federal judges will continue to authorize detention even for people allegedly associated with al-Qaida, and less so for those amorphous ‘associated forces’. And I don’t think the Obama administration is [confident], either.”

Wells Dixon of the Center for Constitutional Rights said his organization intended to bring lawsuits after December for the release of Guantánamo’s Afghans and Yemenis whom the Defense Department no longer believes pose an ongoing security threat.

“It’s classic arbitrary detention, which will be brought into starker relief as we get closer to the end of combat operations in Afghanistan. So we anticipate filing motions for release on behalf of these cleared detainees,” Dixon said.

Post-9/11, the justification for locking people up indefinitely without charge or trial has come from the 2001 Authorization for the Use of Military Force (AUMF). Despite the fact that Obama has publicly announced his desire to repeal the AUMF, the administration continues to rely on the AUMF to justify indefinite detention for a remaining 154 detainees at Gitmo and another 50 or so under U.S. detention in Afghanistan. And once (if?) the AUMF is repealed, Obama has a back up plan:

Effectively, the AUMF unties wartime operations, including detention, from a time or a place and hinges them on membership or association with al-Qaida. In a speech in May 2013, Obama announced his intention to “ultimately repeal” its mandate, although tangible progress toward that goal is difficult to discern.

Caitlin Hayden, a spokeswoman for the National Security Council, pointed to both the AUMF and Congress’s defense authorization for the 2012 fiscal year as providing the necessary authorities for future detentions, while noting Obama’s desire to repeal the AUMF.

Ah, yes, that dastardly NDAA provision that grants the state the power to indefinitely detain individuals, including U.S. citizens, suspected of allying with or supporting “terrorists.” While Gitmo is still thought of as a legacy of George W. Bush, I suspect the indefinite detention provisions in NDAA will go down as one of the most notorious Obama legacies.

In late 2012, Judge Katherine B. Forrest blocked the government from enforcing the NDAA provision on grounds that they violate Constitutionally guaranteed rights to due process. She concluded that the NDAA law appears to permit the President “to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute ‘substantially’ or ‘directly supporting’ terrorist organizations. If this is what Congress in fact intended,” she said, there is “no doubt it goes too far.”

In response, the Obama administration immediately appealed Forrest’s ruling, asking for an “immediate stay,” or suspension of the case’s proceedings. When Forrest denied the request, the government went to the Second U.S. Court of Appeals in Manhattan and asked another judge for an emergency stay, which Judge Raymond J. Lohier granted.

President Obama has always slyly tip-toed around the issue of indefinite detention. His alleged attempt to shut down Gitmo in his first term was a poor effort and, even if successful, would only have been symbolic since his intention was to move the whole system of indefinite detention to American soil. Now he says he wants to shut Gitmo and repeal the AUMF, but is scheming to maintain (and even expand) the War on Terror-type justifications for indefinite detention and suspension of due process rights. The posturing has always been disingenuous. To me, though, it looks like it may just be successful.




3 Responses to “Despite End to Afghan War and (Maybe) the AUMF, Obama Upholds Indefinite Detention”

  1. Indefinite detention has less to do with any real "terrorist" threat from the Guantanamo detainees than it does with fear of what those detainees might say if they are released. Obama has achieved what I would have said was impossible: his disdain for laws, love of drone killings, and promotion of anti-constitutional policies leaves a "legacy" that makes the Bush regime seem almost benign in comparison.

  2. The modern day Inquisition with all it's tell-tale attributes: Arrest without evidence, secret trials, indefinite detention, torture and executions.

  3. Here is what the current State Department list of designated terrorist organizations looks like today. The first thing that comes to mind when suggesting a similar template for the use of military force is the politics