Obama administration employs controversial detention provision as legal defense

Last month, Barack Obama‘s administration resisted provisions codifying the right to detain prisoners indefinitely, arguing that putting such language into law was unnecessary and redundant. Now, the administration is using those very provisions to defend its detention of a suspected al Qaeda militant in federal courts.

The provision in question, Section 1021 of the 2012 National Defense Authorization Act (NDAA), "reaffirms the military’s existing authority to detain individuals captured in the course of hostilities in accordance with the law of war." That authority was given to the administration in the 2001 Authorization for Use of Military Force (AUMF), passed by Congress after the 9/11 attacks. The Obama administration initially threatened to veto the defense authorization bill because it contained a stronger version of Section 1021, but then revoked its veto threat after House and Senate negotiators tweaked the language.

The provision nonetheless faced opposition from civil rights organizations and some senators, including Sen. Rand Paul (R-KY), out of concern that it could be used to justify indefinite detention of anyone suspected of terrorism, including American citizens.

President Obama specifically criticized section 1021 in his signing statement on the day the defense authorization bill became law.

"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," Obama wrote. "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."

Now, thanks to Brookings Institution scholar Benjamin Wittes, we learn exactly how the administration is interpreting that section of the law: It is using it to defend the indefinite detention of Musa’ab al-Madhwan, a Yemeni citizen who has been imprisoned at Guantánamo Bay, Cuba, for years.

"The government has filed its opposition to cert in the case of Al Madhwani v. Obama-a Guantanamo habeas case," Wittes wrote on his Lawfare blog. "Al Madhwani’s cert petition seeks review of this DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District Judge Thomas Hogan’s earlier opinion. The government’s argument is interesting because it explicitly invokes the new language in the NDAA."

In an interview, Wittes noted the irony of the administration using the legal provision it resisted in defending its arguments against  Madhwani now, but said the administration had been consistent in how it defines the application of the authority to detain prisoners indefinitely.

"The administration says the provision is unnecessary and redundant and then this shows up in their brief, but merely as support of their interpretation of the prior law. There’s no hypocrisy here," Wittes said. "It would be weird of them not to cite an on-point federal statute that supports their argument."

Still, one of the supporters of the provision in Congress, Sen. John McCain (R-AZ), told The Cable Tuesday that the administration’s embrace of his provision was disingenuous. "I guess it’s a high form of flattery," McCain said.

Another sponsor of the provision, Sen. Carl Levin (D-MI), told The Cable Tuesday that although the administration strenuously opposed earlier versions of the provision, the administration didn’t outright oppose the final version, despite the unenthusiastic signing statement. "I’m not at all surprised that they used a provision that they ultimately didn’t oppose in their briefs," he said.