The Indefinite Detention Authority the President Doesn't Use

As I highlighted in my post yesterday, one of the key points of contention in the al-Marri case was whether the AUMF authorized the President's military detention of suspected terrorists like al-Marri who were lawfully within the United States at the time of their arrest. In rejecting the government's argument, the Court noted that the Patriot Act, which was passed subsequent to the AUMF, carefully prescribed the terms under which the government is allowed to detain "terrorist aliens" like al-Marri, and that those terms do not include indefinite military detention.

What's interesting, though, is to look at what the Patriot Act does allow. Section 412 of the Patriot Act, entitled DETENTION OF TERRORIST ALIENS, was one of the more controversial sections in the Act when it was first passed in October 2001. Here's what Robert A. Levy of the Cato Institute wrote about this section in November 2001:

[C]ivil libertarians are rightly alarmed that the attorney general can detain, for seven days, non-citizens suspected of terrorism. After seven days, pursuant to Section 412 of the Act, deportation proceedings must commence or criminal charges must be filed. Originally, the Justice Department had asked for authority to detain suspects indefinitely without charge. Congress could not be persuaded to go along. But the final bill, for all practical purposes, allows expanded detention simply by charging the detainee with a technical immigration violation. And if a suspect cannot be deported, he can still be detained if the attorney general certifies every six months that national security is at stake.

As an initial matter, note that the government had asked for the very power it now claims it possesses--to indefinitely detain suspects without charge--and Congress refused to grant it.

What the government did get was Section 412, which permits it to detain any non-citizen who is certified by the Attorney General to have terrorist ties for seven days without any process. After that, anyone "whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person." These six month detention periods can be renewed indefinitely so long as the Attorney General continues to certify that the person is dangerous.

In other words, section 412 of the Patriot Act, in its own way, does provide for the perpetual detention of "terrorist aliens"--at least as long as the Attorney General continues to sign off on it. That's an important point, because opponents of the al-Marri decision are claiming that it forces the government to either try suspected terrorists in civilian courts or release them. For instance, here's Andrew McCarthy ranting away at the National Review:

[T]he majority ruled that al-Marri, a national of Qatar here on a student visa, must either be given a full-blown trial in the civilian-justice system or be released. That is, our “choice” is either to afford al-Marri — who answered directly to 9/11 mastermind Khalid Sheikh Mohammed and met personally with bin Laden — a proceeding in which he would receive lavish discovery that could be extremely helpful to the people trying to kill us, or to release him so that he could rejoin the jihad and continue trying to kill us himself.

This is, needless to say, not at all true. I can forgive McCarthy for not knowing about section 412, though, seeing as the Bush administration has (apparently) never tried to invoke it.

This Patriot Act fact sheet on the DOJ website notes that:

As of February 2004, the Attorney General had not used section 412.

And in this Senate testimony in mid-2005, Professor David Cole, in discussing section 412, points out that "[t]he government has not yet invoked this provision." In my brief google-searching I haven't been able to find anything more recent, but I think it's safe to assume that if section 412 had not been invoked in its first four years of existence, it probably hasn't been invoked since then either.

And the reason for that is pretty obvious. Why bother with section 412 when you claim to have the inherent authority to detain any suspected terrorists, including U.S. citizens, indefinitely in a military brig? Section 412, despite its broad scope, at least requires the Attorney General to re-certify all detentions and provide a report to Congress (detailing who is being held and on what grounds) every six months. It also guarantees habeas rights to anyone detained under its provisions. For the Bush administration, even these meager protections are too much.

The fact that the Bush administration has never elected to invoke its detention authority under the Patriot Act simply underscores, at least in my mind, how bizarre the government's legal position is. The arguments the government has put forward in the various detention cases render section 412 of the Patriot Act entirely superfluous and meaningless. Who needs this authority when the President's powers under the AUMF and Article II allow the executive branch to do everything that section 412 allows and much more, all without any annoying DOJ certifications or Congressional oversight.

Had the government chosen to detain al-Marri pursuant to section 412 of the Patriot Act, the mechanism Congress provided for dealing with "terrorist aliens," his habeas petition would raise very difficult and substantial constitutional questions. Instead, the government chose to disregard the law and simply hold al-Marri in a military brig, without any process whatsoever. As a result, his habeas petition raises much simpler questions, and in my opinion, the Fourth Circuit correctly decided them.