The Obama administration thinks many in the liberal blogosphere are mistaken in their belief that the National Defense Authorization Act (NDAA) signed by the president on New Year’s Eve authorizes the indefinite detention of citizens captured on U.S. soil.
Many progressive and libertarians have argued that the NDAA codifies the president’s ability to detain a U.S. citizen captured on American soil until the war on terrorism is declared over. The administration believes that the NDAA doesn’t specifically allow for the indefinite detention of American citizens, but concedes that it doesn’t specifically ban the practice either.
A senior administration official maintained in an interview with TPM that the NDAA “changes nothing” about the legal question of whether the government could allow for the indefinite detention of U.S. citizens captured in the United States.
“Whether you can pick up a U.S. citizen inside the United States and place them in military detention — which was done in the Padilla case but was never resolved up to the Supreme Court — we would argue still sort of an open legal question and is not answered by the NDAA, it’s totally silent on that,” a senior administration official told TPM. “As far as we’re concerned, the bill doesn’t resolve that question.”
The administration official said their interpretation was that the NDAA “wouldn’t allow you to detain anybody you couldn’t have detained before the bill passed.”
“We have said as a policy matter that this administration will not put U.S. citizens in indefinite detention,” the senior administration official said. “Could a future administration hold a U.S. citizen in military detention? Yes, if the [2001 Authorization for Use of Military Force] allowed it, but that would have been true with or without this bill.”
A source familiar with the negotiations pointed out that several of the members of the Senate Armed Services Committee — Sens. Joe Liebermann, Ben Nelson and Jim Webb — take pretty conservative stances on national security issues, making Sen. John McCain a pretty powerful member. The person familiar with the negotiations said that are many items that ended up in the bill that Sen. Carl Levin wasn’t willing or able to fight on the substance.
Update: A spokesman for Webb points out that the Senator supported several amendments to the NDAA designed to limit executive power under the NDAA, including one that passed.