Congress Must Clarify Administration Detainee Policy

Jul 26, 2011
Defense Drumbeat
Former Attorney General Michael Mukasey and others testify in favor of Congressional Action
On Tuesday, the House Armed Services Committee held a hearing, “Ten Years After the 2001 Authorization for Use of Military Force: CurrentStatus of Legal Authorities, Detention, and Prosecution in the War on Terror,” to examine legal issues surrounding the continued fight against terrorists at war with the United States.

An Updated Statute for an Evolving War

The hearing highlighted the need to update current legal authorities and policies to reflect the changing nature of our enemies and the war in which we are engaged. As former Attorney General Michael Mukasey testified before the committee:

“The fact is that we have fought and captured enemy fighters not only in Afghanistan and Iraq, but also in Somalia, Yemen and Pakistan, and continue to detain hundreds. The AUMF, however, does not explicitly authorize detention, let alone prescribe standards for who should be detained, on what basis, where and for how long…The [current] statute has come to apply to a struggle that has evolved against different people in different places presenting problems different from those that confronted us in the immediate wake of 9/11.”

Mukasey further emphasized the need for increased Congressional action on detainee policy:

“[The current statute] should be amended to make clear to all involved…that detention of suspected terrorists is authorized,  and to set forth standards for detaining and/or killing terrorists, even those who are affiliated with groups other than those directly responsible for the 9/11 attacks…Quite simply, we need a coherent detention policy. The absence of one means we must choose among unsatisfactory alternatives.”

The House Has Acted to Clarify Detention Authority

Indeed, the House Armed Services Committee included language in Section 1034 of the FY2012 National Defense Authorization Act to clarify whom we may detain and whom we may target in battlefields around the world. Former Deputy Assistant Attorney General Steven Engel praised this addition and responded to errant criticisms that this language expands the current conflict:

“Section 1034 is necessary, not to expand the conflict, but simply to ratify the understanding of this conflict that the Executive Branch—under the Administrations of both President Obama and President Bush—has developed in fighting this war...While it is important that Congress confirm this interpretation and give it the clear force of law, Section 1034 neither expands the nature of the conflict, nor confers any new authority on the President at all.”

Administration Lacks Coherent Policy and Avoids Military Commissions

Lack of a coherent detention policy has led to serious detention issues, as evidenced most recently by the Administration’s handling of the detention of Ahmed Warsame, who was captured off the coast of Somalia and brought to the United States in contradiction to pending legislation. As Chairman McKeon and four other committee chairmen wrote in a letter to President Obama on July 19:

“We are concerned that the lack of a comprehensive military detention system will continue to have numerous detrimental results, including: incentivizing lethal operations over law of war detention; the loss of critical detainee-provided intelligence; forcing the United States to be wholly dependent on foreign governments to hold and provide access to detainees; and, as in Warsame’s case, bringing terrorists to the United States.”

Moreover, the Administration continues to avoid the military commissions process. President Obama said in his National Archives speech that detainees who violate the laws of war are “best tried through military commissions.” His attorney general said he had “full faith and confidence” in the military commissions. Reality belies these statements, as Chairman McKeon highlighted:

“…[As] the Warsame case proves, it is the Administration that has foreclosed options that are absolutely critical during a time of war: namely, non-criminal detention for future captures and prosecution by military commission. By foreclosing these options and failing to create a long-term detention regime that puts a priority on intelligence collection and keeping terrorists out of the United States—combined with reluctance to consult or collaborate with Congress on these issues—the Administration has forced Congress to take action on these issues. These concerns are only heightened given the decision to handle Warsame’s case in a manner that directly contradicts pending legislation.”

In an evolving conflict, it is time that the Congress acts to ensure clarity in the prosecution of this war. Ten years after the 9/11 attacks, it is time the President focus on ensuring the success of the military commissions by having the courage to simply use the tools at his disposal.

112th Congress