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Tea Leaves Part II -- Who May the President Detain Indefinitely?

By Jack M. Balkin

The Second Question Presented by the Boumediene petitioners was the substantive question -- one that the trial judges will now consider on habeas -- of who, exactly, the President is authorized to indefinitely detain in the conflict against al Qaeda. (I have much more to say about the merits of this question, and its application to the Bosnian Boumediene petitioners, in my posts in this Federalist Society debate.)

Not surprisingly, the Court emphasized that it was not resolving that question now. Two sentences in the Court's opinion, however, are relevant and (potentially) quite important on this question.

First is this one, on page 59: "Whether the President has such authority [to detain petitioners indefinitely] turns on whether the AUMF authorizes?and the Constitution permits?the indefinite detention of 'enemy combatants' as the Department of Defense defines that term."

Two things interesting about this. The first is that the Court appears to agree with the petitioners that the scope of detention authority is a matter of congressional intent as reflected in the AUMF (which the Court in Hamdi properly construed to incorporate the laws of war) -- with no mention of any additional constitutional detention authority, as argued by the SG.

Second, and more important, the Court very conspicuously indicates that there might be constitutional limits on the power of even the Congress to authorize indefinite detention. That's a very fascinating, and important, suggestion that is sure to be much-discussed now that the Court has held that the detainees are entitled to at least some constitutional protections.

The second sentence is this one, on page 68:

"The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security." I am reluctant to read too much into this sentence, which was not included in a discussion about the scope of detention authority. But it does at least hint at the same point that Justice O'Connor made in her plurality opinion in Hamdi, namely, that dangerousness -- i.e., actual combatancy or threat of terrorist activity -- is the touchstone for indefinite detention, and that perhaps the military lacks the authority, which the Bush Administration has asserted and exercised, to indefinitely detain persons either because they have "aided" al Qaeda or affiliated terrorist groups, and/or because of their intelligence value (see discussion here).

Full post as published by Balkinization on June 12, 2008 (boomark / email).