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Deciding not to Decide


As Charlie Savage and Adam Serwer point out, the Senate yesterday decided to punt on the question of whether the executive can arbitrarily and indefinitely detain American citizens simply by declaring them terrorists.   While dismaying, this is part of an ongoing pattern many political scientists (including yours truly) have identified: legislators deliberately putting contested issues into the courts.    Issues like the constitutionality of arbitrary detention end up in the courts not because the judiciary is “usurping” legislative power but because that’s how legislative majorities want it.

As for how the Supreme Court will rule should they decide to take a case on the matter, their general pattern on such issues is deference to the executive branch.   It’s worth noting, however, that the Hamdi v. Rumsfeld dissent written by noted Trotskyite Antonin Scalia make clear that he doesn’t believe that the arbitrary detention of American citizens absent a suspension of habeas corpus is constitutional.   On the other hand, the only other justice to join Scalia’s opinion — Justice Stevens — is no longer on the bench, so I wouldn’t be terribly optimistic.

However, the bill passed by Senate did actually do some things to make the expansion of arbitrary executive power worse, as Adam notes:

The compromise amendment however, does nothing to address the Obama administration’s concerns about the bill. The Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all said that the bill’s provision mandating military detention of non-citizen terror suspects apprehended on American soil would interfere with terrorism investigations and harm national security. That hasn’t changed. The question is whether or not the administration is willing to make good on its threat to veto the bill, or whether it was just bluffing.

I’m afraid I’m going to have to go with “just bluffing.”

…Obama is reiterating his opposition, which makes a mere bluff less likely; let’s hope I was wrong.

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  • c u n d gulag

    It would appear to me that after 9/11, in our newer, better, and ‘saferer,’ Constitution 2.0, we’ve decided to interpret “Habeas Corpus” to mean ‘Hold ’em ’til they’re dead.’

    We have too many cowards in Congress.
    Moral cowards!

  • It seems strange to cast this as “expanding unbridled executive power,” when the provisions limit the executive’s discretion, and compel it to handle the situation the way Congress wants, whether the executive likes it or not.

    In this case, the “executive power” argument works in opposition to the military detentions.

    • On that same theme: the Obama administration has cited Congress’s AUMF as the source of its authority to detain people in the war against al Qaeda, in contrast to the Bush administration, which cited inherent executive authority under Article II.

      In this bill, Congress isn’t given the executive authority, but rather, seeking to limit that authority.

      Which is to say that better and worse detention policies no longer map directly to a larger or smaller interpretation of inherent executive authority, they way they did in the Bush years.

      • Oops.

        Congress isn’t given the executive authority

        giving, not given. Congress isn’t giving any additional authority to the executive.

      • Bill Murray

        I think you mean worse and worst not better and worse

    • Scott Lemieux

      That’s why I said “arbitrary,” not “unbridled.” The ability of the executive to use non-arbitrary detentions has been curtailed.

      • Right. I was commenting more on the articles you linked to, especially Lithwick’s.

      • Bill Murray

        but the problem is arbitrary detention. Non-arbitrary detention implies there was a reason beyond I say so.

  • Njorl

    Rather than vetoing the bill, I think it would be more effective to sign it, and imprison all of congress for their terroristic assault on the Constitution. Not having much experience with power, I often go for irony over practicality.

  • wengler

    Congress is furiously attempting to shed the last part of its single-digit support.

    What’s next? The ‘kill puppies for rich lady’s coats’ bill?

    • c u n d gulag

      Nah, keepin’ them terrists in jail forever without a trial is a huge plus for the Conservative rubes.

      Just watch, Congress’s ratings will improve if this is sited in a poll. At least among Republicans.

  • The question is whether or not the administration is willing to make good on its threat to veto the bill, or whether it was just bluffing.

    I’m afraid I’m going to have to go with “just bluffing.”

    Obama made an explicit veto threat – an “I will not sign any bill…,” “I will veto any bill…” threat. Not a statement about what he wants or supports or opposes, but a statement about what he would veto.

    To my knowledge, Obama has not violated any of his explicit veto threats (whereas he has certainly signed bills that contained things he said he opposed, or did not contain things he said he wanted, but did not issue a veto threat over). In 2010, for instance, he said he opposed extending the Bush tax cuts, but he didn’t threaten a veto. In 2011, after signing the tax/spending deal, he made an “I refuse to sign…” statement about them. During the debate over the ACA, he made numerous statements about wanting a public option, including using the phrase “my bottom line,” but he never issued a veto threat over the issue.

    He’s also been quite restrained in his use of veto threats – he doesn’t just throw them out there as a bargaining position to be traded away. He seems to use them to mark out his non-negotiable red lines, as opposed to preferences.

    So, I predict the opposite. This either gets dropped in Conference, or Obama vetoes it.

    • Murc

      Obama has reneged on specific promises to use specific tools at his disposal to block bad legislation before at least once (see Telecom Immunity), so I am less sanguine.

      However, I do think the general thrust of your argument is correct.

  • wengler

    Also, unlike their buy-me bills, written by lobbyists for the benefit of few and detriment of all, this one is pure pants-shitting theater.

    Tim McVeigh should’ve been sent to a military tribunal, why? Their insistence on inserting the military justice system into domestic cases, when there is already a perfectly broken and corrupt civilian system willing to send anything labeled ‘terrorist’ to SUPERMAX, is disturbing.

  • Just last night I sent a check for twenty dollars to the ACLU, so I can once again be a card-carrying member.

  • Jamie Mayerfeld

    Great post, Scott, despite its depressing content. I think you are right, unfortunately.

  • Jamie Mayerfeld

    Can you fix the Adam Serwer link? I’d like to read it….

    • Scott Lemieux


  • cpinva

    what’s the difference between

    mere bluff

    , and

    studied bluff


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