The Forgotten Legislative History Of Indefinite Detention

  Earlier this week, a panel of the Fourth Circuit Court of Appeals held that the government did not have the authority to detain Ali Saleh Kahlah Al

al-marrijpg.jpeg  Earlier this week, a panel of the Fourth Circuit Court of Appeals held that the government did not have the authority to detain Ali Saleh Kahlah Al-Marri--a Qatari national who had come to the United States on a student visa--indefinitely without process. Al-Marri, who the government claims is a terrorist, has spent the last four years in a military brig in South Carolina. He has not been charged with a crime or even an immigration violation.

In its court filings, the Bush administration argued that Congress had implicitly provided statutory authority for this sort of detention when it passed the Authorization for Use of Military Force (AUMF) shortly after 9/11. The Fourth Circuit rejected this argument, noting that "if Congress intended to grant this authority it could and would have said so explicitly."

The Court then pointed out an obvious historical flaw in this argument:

In fact, shortly after Congress enacted the AUMF, it enacted another statute that did explicitly authorize the President to arrest and detain "terrorist aliens" living within the United States believed to have come here to perpetrate acts of terrorism. . . .

[T]he Patriot Act establishes a specific method for the Government to detain aliens affiliated with terrorist organizations, who the Government believes have come to the United States to endanger our national security, conduct espionage and sabotage, use force and violence to overthrow the government, engage in terrorist activity, or even who are believed likely to engage in any terrorist activity. Congress could not have better described the Government's allegations against al-Marri -- and Congress decreed that individuals so described are not to be detained indefinitely but only for a limited time, and by civilian authorities, prior to deportation or criminal prosecution.

In sum, Congress has carefully prescribed the process by which it wishes to permit detention of "terrorist aliens" within the United States, and has expressly prohibited the indefinite detention the President seeks here. The Government's argument that the President may indefinitely detain al-Marri is thus contrary to Congress's expressed will.

Though the Court stopped there, the evidence that Congress did not wish to authorize this sort of detention is even more clear cut.


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First, during the negotiation of the terms of the AUMF, the Bush administration sought to include language specifically authorizing the use military force "within the United States." Congress rejected that language and it was not included in the final version of the AUMF. That, in and of itself, is compelling evidence that Congress did not intend to authorize the military detention of people lawfully within the United States.

But the legislative history of the Patriot Act is even more compelling. On September 12, 2001, the Justice Department began drafting what would later become the Patriot Act. A week or so later (right around the time Congress was voting on the AUMF) John Ashcroft delivered the administration's proposed bill to Congress and demanded that it be enacted within days. One of the key provisions of the administration's bill would have allowed the government to indefinitely detain immigrants whom it deemed to be threats to national security.

Despite the enormous political pressure to act quickly, this provision immediately encountered resistance from both sides of the aisle. From the New York Times, September 20, 2001:

Mr. Leahy singled out the administration's immigration provisions as especially troublesome. The White House has proposed that authorities be able to detain or deport immigrants who are suspected of terrorism without presenting any evidence in court. . . .

''On the immigration question, if we change from 24 to 48 hours before deciding whether to charge someone, well, I can understand that,'' Mr. Leahy said. ''But I don't think we need to talk about indefinite detention.''

And September 28, 2001:

Senator Arlen Specter, Republican of Pennsylvania, is worried about the administration's proposal to allow the indefinite detention of immigrants if they are deemed to be threats to national security.

Senator Edward M. Kennedy, Democrat of Massachusetts, shares those objections.

These concerns led to the provision being dropped from the bill, first from the House version on October 2, 2001:

Democratic and Republican negotiators in the House reached agreement today on a bill that would give law enforcement officials expanded authority to wiretap suspected terrorists, share intelligence information about them and monitor their Internet communications.

But the compromise bill also makes the wiretap authority temporary and omits or scales back some of the measures the Bush administration sought, notably the authority to detain immigrants suspected of terrorism indefinitely without charges. The administration had been pressing for far more extensive changes in the law and had hoped its proposals would move with little debate through a Congress eager to respond to the Sept. 11 terrorist attacks on the World Trade Center and the Pentagon.

The proposal for indefinite detention of immigrant suspects engendered the greatest opposition from civil libertarians both inside and outside Congress. Under the plan agreed to this evening by Representative F. James Sensenbrenner Jr., the Wisconsin Republican who is the chairman of the Judiciary Committee, and Representative John Conyers Jr. of Michigan, the committee's ranking Democrat, the government could detain an immigrant suspected of terrorism for seven days without bringing charges.

And then from the Senate version on October 12, 2001:

[The Senate compromise bill] would also strengthen the authorities' ability to detain terrorism suspects, although it would not provide the indefinite detention the administration originally sought.

So, long story short, in the weeks following 9/11, the Bush administration pushed hard for the authorization to use military force domestically and later for express statutory authority to detain suspected terrorists indefinitely without process. And although Congress was under enormous political pressure to act quickly and was clearly willing to rubberstamp most of the administration's requests, it pushed back and ultimately rejected the administration's efforts on both occasions. The AUMF did not authorize military force within the United States and the Patriot Act provided the government with only the authority to detain "terrorist aliens" like al-Marri for up to 7 days without process, at which point it must commence either deportation or criminal proceedings (though, interestingly, a never-yet-utilized provision of the Act arguably allows the government to continue holding "terrorists aliens" more or less indefinitely, subject to certain certifications).

Despite this clear legislative history, the government's lawyers now claim that, in passing the AUMF, Congress granted the administration powers that it quite clearly did not intend to grant, including powers it specifically rejected during the debate over the Patriot Act, which began almost as soon as the AUMF was passed. Fortunately, the Fourth Circuit saw this argument for what it was, a particularly brazen example of revisionist history.

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