Washington Debates Constitutional Rights During the War on Terror

“Congress should state explicitly that detention authority under the AUMF and the NDAA does not extend to any persons captured within the territory of the United States,” said Robert M. Chesney, a Brookings Institution senior fellow.

The hearing was convened on the constitutional rights of U.S. citizens, but Conyers proposed to consider non-citizens’ rights as well, and noted that the Constitution protects individuals detained anywhere in the world by the United States.

Conyers criticized President Obama for his failed promise to close the detention camp at Guantanamo Bay, saying that “we should no longer entertain the legal fiction that [the prison] is outside of jurisdiction of the United States.”

“If we’re to have a serious debate about how to make 13 years of indefinite detention end in Guantanamo and square with the values in our Constitution, then we ought to include everyone in our custody as part of this discussion,” Conyers said.

Mary O’Connell, a leading expert on the law respecting targeted killing, testified about fundamental rights during the war on terror.

O’Connell, who in the past urged the Obama administration to end the use of drone strikes outside of combat zones, said the internationally recognized definition of armed conflict relies on two fact situations: there must the presence of organized armed groups and these groups must be engaged in situations of intense armed fighting.

“Because armed conflict requires a certain intensity of fighting, the isolated terrorist attack, regardless of how serious the consequences, is not an armed conflict,” said O’Connell. “It is true that the extraordinary situation of real armed conflict hostility does change the rights to which people are entitled, most importantly with respect to our very lives, to our liberty, and to the process which we are owed. These rights change according to the law of armed conflict, but the law of armed conflict also severely limits the situations in which these changes apply.”

She noted that the law of armed conflict provides a definition on what counts as armed conflict based on “open and obvious facts that all can see and mutually reinforce within the community of states” and that an isolated terrorist attack, regardless of how serious the consequences, is not an armed conflict.

President Obama argued in his recent address at the National Defense University that it is time for the AUMF to be repealed. Obama argued that, unless the AUMF is rewritten, Congress risks giving future presidents more powers.

“Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states,” Obama said.

The president’s remarks displayed a sharp contradiction within his administration about the AUMF. Military officials recently said that the resolution would be needed for at least 10 to 20 years, noting that the broad interpretation of this law gives them the flexibility to deal with a changing threat in a lawful, effective manner.

Obama also defended the use of drones against terrorist groups, saying that these strikes have saved lives. Nevertheless, he added: “For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen – with a drone, or with a shotgun – without due process. Nor should any president deploy armed drones over U.S. soil."