Has the National Defense Authorization Act Made Indefinite Detention Legal?

By Andrew Mackanin

Following September 11th, the United States faced a particularly daunting challenge.  The “War on Terror” was not against one particular state, group, or individuals, but a hot and cold war against any of those three that threatened, supported, or committed terrorist acts. The shock of 9/11 drove Congress to grant broad powers to the Executive through the Authorization For Use of Military Force (AUMF). It allowed the president to “use all necessary and appropriate force…” which has been interpreted broadly, by both the Bush and Obama administration, to grant the power to indefinitely detain both citizens and non-citizens alike who support terrorism against the U.S. (http://www.fas.org/sgp/crs/natsec/RS22357.pdf).

Every year, Congress passes the National Defense Authorization Act (NDAA), which lays out basic national defense measures and the military budget. The power of indefinite military detention implicitly granted by the AUMF was codified in the NDAA for 2012. When President Obama signed the law, he stated, “the fact that I support this bill as a whole does not mean I agree with everything in it” (http://www.forbes.com/sites/erikkain/2012/01/02/president-obama-signed-the-national-defense-authorization-act-now-what/). What President Obama was most likely referring to was the constitutional concern that the writ of habeas corpus will not be available to anyone suspected of supporting terrorism. This includes U.S. citizens, both within and outside of the country. The previous year there were reports that President Obama would veto the law unless the power of indefinite detentions was left in. Citizens have the constitutional guarantee of the writ of habeas corpus except during times of rebellion or invasion. So is the AUMF and NDAA constitutional?

The concern about indefinite military detentions gained publicity from the Hamdi v. Rumsfeld decision. Hamdi, a U.S. citizen, was captured in Afghanistan and held in military detention. The Supreme Court was forced to balance personal interests against national security concerns. The Court held Hamdi was rightfully detained as an enemy combatant, citing the war powers granted by the Constitution, but he could not be held indefinitely, and he could challenge his enemy combatant status in court.

Currently, the NDAA for 2013 has been approved by the House of Representatives and is awaiting passage in the Senate. This year’s bill includes explicit language from the AUMF or the NDAA (2012), stating

“shall [not] be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained…who is otherwise entitled to the availability of such writ or such right”

(http://rt.com/usa/news/ndaa-indefinite-detention-trial-816/). Even with this language being included, a citizen placed in military custody has only 30 days to file a writ of habeas corpus in a district court. This could lead to as much as 30 days of military detention in locations such as Guantanamo. After 30 days, the citizen loses their right to file the writ, which could lead to their indefinite detention without any type of Constitutional relief. In a bi-partisan effort, Senators Feinstein and Lee, proposed language, in amendment No. 3018, that would explicitly protect American citizens from being held without a charge or trial when captured on U.S. soil in an attempt to prevent any chance of abuse. It in no way is to be construed as stopping the Executive from arresting and detaining any individuals who threatens or supports terrorism, whether they are a U.S. citizen or not. Rather it is designed to ensure U.S. citizens that are detained have their day in court and are not held in military custody.

Overall, the White House argues that the powers have been granted to them by the AUMF, so it is irrelevant if they are codified in the NDAA.  The White House also says U.S. citizens are already protected by the Constitutional guarantee of habeas corpus. Groups such as the ACLU argue that the Constitution does not allow for indefinite detentions of U.S. citizens under any circumstances, regardless of what the national security interests are. Even if the current administration does not make use of this power the door is open so that other administrations can, regardless of the circumstances. What troubles me about these arguments is the absence of any discussion on whether the state of our national security could justify this power today. The administration and groups such as the ACLU are on opposite sides of the argument without a full discussion of what the situation is. The government claims it needs this power and opponents claim nothing will justify this power. The Feinstein and Lee amendment is necessary for protecting the rights of U.S. citizens. The amendment sidesteps around the debate that should be happening rather than a step forward into the tough discussions that need to happen.

In 2001 and the years immediately following, indefinite suspensions of certain individuals could have been considered necessary by the American people. Public opinion following September 11th supported the drastic measures that were necessary. But where are we today? Do we still need this extreme measure to keep our country safe or is it time to make sure that both current and future administrations do not abuse this power for unnecessary reasons. At this point terrorism is still a very real threat, but it no longer is the same overwhelming danger that it once was following two wars and the full focus of U.S. diplomatic and military power. U.S. citizens must always have access to the courts. This access has been guaranteed by the Constitution except in times of rebellion or invasion. Terrorism presents a whole new type of danger that does not fall under rebellion or invasions. The war powers granted to the executive and legislature no longer dominate the situation and it is time to defend citizens against the threat of abuse from the U.S. government. At the beginning of the New Year, President Obama signed in the NDAA of 2013. The Feinstein Amendment was left out of the law in its entirety. Guantanamo was allowed to stay open and indefinite suspensions are still a part of the NDAA’s language. No matter which side of the debate you fall the executive power the NDAA remain and our leaders ignore the hard questions.

Sources:

http://www.forbes.com/sites/erikkain/2012/01/02/president-obama-signed-the-national-defense-authorization-act-now-what/

http://rt.com/usa/news/ndaa-indefinite-detention-trial-816/

http://www.feinstein.senate.gov/public/index.cfm/2012/11/senators-feinstein-lee-introduce-amendment-to-protect-civil-liberties

http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf

http://www.aclu.org/blog/tag/ndaa

http://www.gpo.gov/fdsys/pkg/BILLS-112hr4310rfs/pdf/BILLS-112hr4310rfs.pdf

http://www.fas.org/sgp/crs/natsec/RS22357.pdf

http://rt.com/usa/news/obama-ndaa-detention-president-288/

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