Some Clarity on Indefinite Detention

Not having read the Defense Authorization Bill myself, I'm having to rely on sources. It seems NYT, which I quoted yesterday, didn't really read it either. Adam Serwer brings some much needed clarity to the subject:

A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won't be based on the authority in this bill.

So it's simply not true, as the Guardian wrote yesterday, that the the bill "allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay." When the New York Times editorial page writes that the bill would "strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists and hand it off to the military," or that the "legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial," they're simply wrong.

The language in the bill that relates to the detention authority as far as US citizens and permanent residents are concerned is, "Nothing in this section shall be construed to affect 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."

This does not mean that provision is perfect, or even desirable. As Serwer notes:

Though detention of non-citizen Al Qaeda suspects captured in the US is now mandatory in name only, because of procedural loopholes that allow the president to avoid placing such a suspect in military custody, the bill nevertheless writes into law an assumed role for the military in domestic counterterrorism that did not exist before. This is not a power this president is likely to use, because neither he nor his top national security officials seem to think they even need it. A future US president, even one more enamored of executive power, might still not use it for similar reasons: Because his non-political advisers tell him it's a bad idea.

I'm not so confident as Serwer that the president -- Obama or any future president -- is not likely to use: if the power exists, it will be used. And if the possibility for abuse exists, it will be abused.