Holder Appears to Endorse President’s Power to Hold U.S. Citizens Indefinitely

Created: May 14, 2009 13:11 | Last updated: July 31, 2020 00:00

Asked in careful, direct questioning by Rep. Jerrold Nadler (D-N.Y.) whether Attorney General Eric Holder believes the government has the right to hold a detainee indefinitely without charge or trial on U.S. soil — as Ali al-Marri was, before the administration charged him in federal court and thereby avoiding Supreme Court review — Holder characteristically skirted the question.

“We have a fundamentally different view than the Bush administration did about Article 2 powers,” said Holder, referring to one source of authority the Bush administration relied on to hold detainees indefinitely. However, the president, as Commander-in-Chief does have certain power under the laws of war, said Holder, and “it has been traditional that people are held for the duration of a conflict.”

Asked if that would extend beyond a traditional battlefield to arresting a man in Peoria, Ill. and imprisoning him indefinitely — as the Bush administration did to Al-Marri — Holder said, “It’s not the position of this administration that we want to hold people for indefinite periods of time … without being tied to some statute, or international agreement, some customary in way in which this nation has conducted itself, I do not believe the president has that power. It has to be tied to something.”

Well, given that he just said that the laws of war allow indefinite detention for the duration of the conflict, and he didn’t rule out defining that conflict as a broad “war on terror” that could reach from Pakistan to Peoria, it sounds like Holder just said that he does support the executive’s power to detain anyone indefinitely  — whether overseas or at home on U.S. soil.