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NDAA bill may allow for indefinite detention of American citizens

On December 31, President Obama signed into law the controversial National Defense Authorization Act for Fiscal Year 2012, and critics have pounced on the bill claiming that it potentially allows for the indefinite detainment of American citizens.

Let me go ahead and warn everyone that this is a very complicated subject, but I’m going to do my best to try and make it intelligible.

On its surface, the NDAA is an 1844-page spending bill that authorizes $662 billion for the defense budget. But contained within the legislation are provisions that deal with the detention of terrorism suspects, specifically the portion of the bill entitled, “Subtitle D –Counterterrorism.”

These provisions of the bill do not so much expand presidential authority for detaining suspects as it does reaffirm an authority both former President Bush and Obama claim already existed as granted by the Authorization for Use of Military Force.

The AUMF was a one-page joint resolution passed by Congress immediately after 9/11 authorizing the use of military force against those responsible for the terrorist attack and granted the President the authority “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” in 9/11.

Section 1021 of the NDAA codifies this authority of the AUMF and defines a “covered person” subject to this authority as the following:

“A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” or “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

So, in effect, this section puts a Congressional stamp of approval on the administration’s interpretation of the AUMF, even though the AUMF does not explicitly state anything about powers of detention.

The new language that is added to the NDAA that was not in the original AUMF is the phrase “substantially supported.”

This phrase is dangerously broad and could, perhaps, be used to detain someone only tangentially involved in organizations hostile to the United States.

Furthermore, when someone is detained that is deemed a “covered person,” the NDAA allows for four options for disposition, including trial by a military commission, trial by an alternate court or tribunal, or transfer of custody to the person’s country of origin or any foreign entity.

But the most terrifying option is “detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”

Considering the War on Terror could potentially last forever, a person could reasonably be held indefinitely without trial under this provision.

However, contained is this provision is also language that says, “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.”

While it seems to exempt U.S. citizens, it still allows the potential for the detainment of U.S. citizens if captured outside of the United States.

But the next section does seem to allow for the potential for American citizens to be detained.

Section 1022 of the bill refers to a subset of “covered persons” defined as “a member of, or part of, al-Qaeda or an associated force” and someone who “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”

If a person is detained that falls under this subset, the bill says the requirement for military custody “does not extend to citizens to the United States.”

The key word here is “requirement,” which does seem to suggest that the option for indefinite military detainment is still available but is simply not mandatory.

When Obama signed the NDAA into law (after backing down from his empty veto threat), he also offered a signing statement that said, “I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens.

“Indeed, I believe that doing so would break with our most important traditions and values as a nation. My administration will interpret Section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war and all other applicable law.”

While that might be true (it’s too early to tell), it really suggests only that the Obama administration will not interpret the NDAA to include American citizens but completely leaves open the possibility that subsequent administrations will have a different interpretation.

Ultimately whether or not these provisions of the NDAA will be used in the worst-case scenario manner that critics fear is yet to be determined.

But there is no question that the bill absolutely could be interpreted to be used in such a manner, even if such a worst-case scenario is perhaps unlikely.

This is just the recent in a long line of measures the Obama administration has supported that curtail civil liberties in this country. Obama has proven to be just as hawkish, if not more so, on foreign policy than the Bush administration —  and many liberals and progressives are starting to feel this is not what they voted for in 2008.

The very fact that this legal ambiguity exists in a bill such as this is utterly unforgivable.

While the NDAA might not exactly be the end of the Bill of Rights as we know it, the bill is a dangerous piece of legislation that should have never been passed or signed into law with such shameful and troubling ambiguities.

 W. Paul Smith
Opinions Editor 

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