Why Losing Indefinite Detention Powers Would Be A Disaster For Obama


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There’s a big story by Greg Miller in the Washington Post on how the Obama administration has expanded its powers in the War on Terror.

Miller notes that the legal foundation for U.S. counterterrorism strategy is partially based on “the Congressional authorization to use military force” (AUMF) that was passed after 9/11.

Specifically it seems to be based on an interpretation of the AUMF that was “reaffirmed” by the indefinite detention clause of the National defence Authorization Act (NDAA). 

This explains why Obama is fighting so hard to keep the indefinite detention clause in effect.

In court the government argued that the indefinite detention clause is simply a “reaffirmation” of the Authorization Use Of Military Force (AUMF), which gives the president authority “to use all necessary and appropriate force against those … [who] aided the terrorist attacks that occurred on September 11, 2001 or harbored such organisations or persons.” In the NDAA lawsuit, the government argued that the NDAA §1021 is simply an “affirmation” or “reaffirmation” of the AUMF.

But the NDAA adds language to the AUMF when it says “The President also has the authority to detain persons who were part of or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in the aid of such enemy forces.”

That extra part is what Judge Katherine Forrest ruled unconstitutionally vague. And since Judge Forrest was careful to protect the AUMF in her permanent injunction, the government should be OK with that decision if the AUMF and NDAA indefinite detention powers are precisely the same.

Tangerine Bolen, an activist and plaintiff on the NDAA lawsuit, told us that the government’s reaction raised “significant red flags” that the indefinite detention clause is “a retroactive legislative fix …[that] allows them to continue to arbitrarily apply indefinite detention to whomever they wish, whenever they wish, for whatever reasons they wish without being held accountable.”

Thus a victory for the plaintiffs in the NDAA lawsuit would strike down unjustified indefinite detention powers that the government has been claiming for years.

Our lawsuit is the lock on Pandora’s box,” Bolen said. “And Pandora’s box is the overly broad application of the AUMF… [Blocking NDAA §1021] is to suddenly and sharply delimit powers upon which President Obama has come to rely wrongfully. He never should’ve had these powers. Bush never should’ve had these powers.”

The Post notes that critics of Obama’s secret drone war argue that its legal justifications have become much weaker as “the drone campaign has expanded far beyond the core group of al-Qaeda operatives … [and] officials see an array of emerging threats beyond Pakistan, Yemen and Somalia — the three countries where almost all U.S. drone strikes have occurred.”

Bolen argues that the “irreparable harm” is that the permanent injunction would possibly be “exposing illegal activities for the last decade. It could have such a set of ripple consequences: we could see people in the Bush administration, Obama administration and security agencies be investigated for how they have applied the AUMF. Obama could finally be forced to release all the prisoners at Guantanamo Bay who have been cleared for years. It’s an incredible headache for him.”

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