Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at how the federal courts could be drawn into a controversy over the president’s powers to detain terror suspects once U.S. combat soldiers leave Afghanistan.
THE STATEMENT AT ISSUE:
“The government is bracing for a wave of new habeas corpus lawsuits after combat operations in Afghanistan come to an end in December, raising the question of whether the legal basis for wartime detentions – the 2001 authorization to use military force against the perpetrators of the Sept. 11 attacks – has expired. J. Alan Liotta, the top Pentagon detainee affairs official, said that he expects the detention authority to remain viable because most detainees are considered part of Al Qaeda or an associated force, rather than solely Taliban, and the broader armed conflict continues.”
– Charlie Savage, New York Times staff reporter, in a story September 1 discussing the long-stalled plan by President Obama to close the detention center for terrorism suspects at a U.S. Navy facility at Guantanamo Bay, Cuba.
WE CHECKED THE CONSTITUTION, AND…
America has been involved in many wars, some conducted in ways that fully complied with limits set by the Constitution, and some that were not. But the Constitution has never been understood to allow for an unending war, one that has no definite end-point. As the U.S. military combat effort in Afghanistan approaches its planned conclusion at the close of this year, federal courts are certain to be drawn into a new controversy over what that will mean, constitutionally.
In fact, that new controversy has already begun, in anticipation of the withdrawal of the last U.S. combat soldiers from Afghanistan – if President Obama’s timetable is fulfilled. Last month, a federal judge in Washington, D.C., refused to decide a claim by a Kuwaiti national held at Guantanamo for more than 12 years that his detention will become illegal with the end of hostilities in that Asian country. The judge said that it is unknown at this time what the situation will be when that happens, so she did not have a live controversy at stake, and thus had no jurisdiction to decide.
However, the judge specified that she would allow the detainee to renew his challenge at a later time, depending upon whether the government still insists on holding him after all of the troops have come home. President Obama has made some public statements that have suggested that, once hostilities are over, detainees will be released. But Pentagon officials have made public statements suggesting that they will not easily relinquish custody of all detainees, even if there is no combat operation going on in Afghanistan.
Ever since the terrorist attacks on the U.S. on September 11, 2001, the power of the president and his subordinates to detain terrorism suspects has been based upon the Authorization for Use of Military Force, passed swiftly by Congress right after those attacks. As written, it seemed aimed only at those who were directly involved in or helped out with those specific attacks.
President George W. Bush and, later, President Obama have insisted that the power to detain goes beyond the actual perpetrators of the 2001 assault, and some government lawyers have actually argued in court that the AUMF provides detention power throughout the globe, because the terrorist threat reaches worldwide.
When the Supreme Court 10 years ago first upheld the AUMF resolution as the basis for detention of terrorism suspects, it noted specifically that this was limited to the duration of armed conflict. Last April, when the court turned down one Guantanamo detainee’s appeal of his imprisonment, one of the members of the court – Justice Stephen G. Breyer – noted in a separate opinion that the court had never ruled on whether “either the AUMF or the Constitution limits the duration of detention.” That is exactly the question that will reach the courts post-Afghanistan.
In the decision last month by a federal judge in Washington concluding that it was too soon for the courts to answer that question, a number of passages in her opinion at least hinted at the idea that, once the Afghanistan combat operations cease, detention would, in fact, become unlawful. But since she was not formally ruling on the issue, those comments do not have the force of law.
The new terrorism tensions in the world, especially with the rise of the militant Islamic State movement in Iraq and Syria, U.S. officials are beginning to work out strategies on how to respond to the new challenges. It would be no surprise if one of the options that the government could pursue would be to ask Congress for a new grant of power to carry on anti-terrorism operations – including a fresh authority to detain terrorism suspects.
If the White House and Congress could agree on such a new authorization, the chances would appear to be fairly high that the courts would react by concluding that this joint effort by the two political branches to combat new terrorist threats would be sufficient, constitutionally.
After all, the courts have been quite willing to give expansive interpretations to the AUMF passed in 2001.
But if there were to be no new resolution of that kind, then it would appear that the courts would have to confront whether the president, after Afghanistan, could assert new detention power based only on his own executive branch authority under Article II – especially, the unspecified but sweeping range of powers that go with the Commander in Chief role.
It is possible, already, to hear public statements by Pentagon officials that they are persuaded, at least for the time being, that the AUMF from 2001 is broad enough to maintain detention power in existence even post-Afghanistan.
So far, it is not fully clear just what legal and constitutional arguments would be made in court by government lawyers should they seek to follow through on those comments from the Pentagon. Most of the key documents filed in the Washington case decided last month remain out of public view, but those may well have contained at least hints of what the government is thinking, legally and constitutionally, in anticipation of the end of combat in Asia.
