Supreme Court rejects hearing on military detention case

[struggle4progress]

22. The problem, as I expect we've discussed previously, is the Beltway consensus

that al-Qaida and affiliated/related organizations should be handled by military methods, rather than by criminal justice methods

The military model does not presume persons, such as prisoners of war, are entitled to any beyond-a-reasonable-doubt standard for detention, nor will it provide determinate-length sentences: the prisoners are typically held until hostilities cease. The model, however, involves assumptions that the opponent has state-like organization and that the end of hostilities can be negotiated and enforced, which may be questionable when the opponent is a loose confederation like al-Qaida

To end applicability of the military model here, one needs Congressional repeal of the AUMF

As long as the current Beltway consensus prevails and the AUMF remains in force, persons captured abroad may be subject to standards Congress may provide, as specified in the Constitution Art I Sec 8 Par 11: The Congress shall have Power To ... make Rules concerning Captures on Land and Water

In signing the NDAA, the President wrote:

Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities ... I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law. Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

Shortly afterwards,

... the Obama Administration issued a policy directive that effectively negates much of the NDAA’s section 1022, the section that purports to require that non-citizens suspected of strong links to terrorism be held in military, rather than civilian, custody. Using a national security rationale, the directive reverses the presumption of military detention that section 1022 had established ... The goal of the NDAA’s detention provisions, stated clearly by many of the law’s congressional supporters, was to limit executive discretion, dramatically restrict reliance on civilian justice options, and ensure that terrorism cases are handled by the military ... The new directive takes what the law framed as an exception to this presumption and makes it the rule, effectively turning the presumption on its head. Taking advantage of section 1022’s national security waiver provision, the new directive sets out a number of broad and flexible categories of suspects who are supposed to remain in the civilian justice system ...