When he signed the National
Defense Authorization Act on Saturday, President Obama issued a

statement that addresses its controversial provisions regarding
his authority to detain terrorism suspects (emphasis added):

Section 1021 affirms the executive branch’s authority to detain
persons covered by the 2001 Authorization for Use of Military Force
(AUMF)….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. First, under section
1021(d), the bill does not “limit or expand the authority of the
President or the scope of the Authorization for Use of Military
Force.” Second, under section 1021(e), the bill may not be
construed to affect any “existing law or authorities relating to
the detention of United States citizens, lawful resident aliens of
the United States, or any other persons who are captured or
arrested in the United States.” My Administration strongly
supported the inclusion of these limitations in order to make clear
beyond doubt that the legislation does nothing more than confirm
authorities that the Federal courts have recognized as lawful under
the 2001 AUMF. Moreover, 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.

Although it’s true that the Supreme Court has
interpreted the AUMF as implicitly approving certain detention
powers, the extent of those powers remains unclear. Since the NDAA,
unlike the AUMF, explicitly mentions detention “without trial” and
broadens the category of people subject to “military force,” it’s
not true that it “breaks no new ground.” Notwithstanding the
assurances cited by Obama, the NDAA
favors a broad reading of the detention powers supposedly
granted by the AUMF.

The promise in bold is interesting because it does not
distinguish between American citizens captured on a foreign
battlefield and American citizens arrested in the United States. In
the 2004 case Hamdi
v. Rumsfeld, the Supreme Court approved the indefinite
military detention of an American citizen captured on the
battlefield in Afghanistan, although it said due process required
that he be given “a fair opportunity to rebut the Government’s
factual assertions before a neutral decisionmaker.” It has not
addressed the question of whether this detention authority extends
to terrorism suspects arrested on U.S. soil or whether citizenship
matters in that context. Obama therefore is saying he will not
use a detention power that has been upheld by the Supreme Court
while reserving the possibility that he will use one
(relating to noncitizens arrested here) that has not. He does not
actually say that indefinite military detention of U.S. citizens is
not authorized by the AUMF or that it is unconstitutional, although
he does say that it “would break with our most important traditions
and values.” Unless Obama has some sneaky definitions of
indefinite or trial in mind, he is
committing to avoid treating U.S. citizens suspected of ties to
terrorism the way the Bush administration treated Yasser Esam Hamdi
and Jose Padilla.

Obama’s plans for noncitizens linked to Al Qaeda are less
clear:

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.

Sen. Lindsey Graham (R-S.C.) and other supporters of this
provision
argue that terrorism suspects are “captured in the course of
hostilities” no matter where they are found, because the
battlefield in the War on Terror is the entire world, including the
United States. Attorney General Eric Holder seems to
agree with that view. Obama demands the discretion to treat
noncitizens suspected of ties to Al Qaeda as prisoners of war or as
criminal defendants, and he does not say whether the location or
context of their arrest matters. He does say that in implementing
the NDAA’s detention provisions he will seek to “provide the
maximum measure of flexibility and clarity to our counterterrorism
professionals permissible under law.” The flexibility Obama wants
does not seem consistent with the clarity required by the rule of
law.