On New Year’s Eve, President Obama signed into law the National Defense Authorization Act (NDAA) for Fiscal Year 2012. While the thousand-page document is predominantly a military spending authorization bill (read: essentially veto-proof in the age of the super PAC), human rights and civil liberties advocates like the ACLU, Human Rights Watch and Amnesty International eviscerated provisions that address the executive authority to detain individuals indefinitely in the name of national security.
The thorny and convoluted counterterrorism section of the NDAA begins by affirming the President’s ability to detain “without trial until the end of the hostilities” any person who either (1) “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible”; or (2) “was a part of or substantially supported al-Qaeda, the Taliban, or associated forces.”
That second category merits some pause, in that it explicitly covers not only members of al-Qaeda and friends, but also “substantial supporters.”
Those who have followed the Tarek Mehanna case might remember that “support” for terrorism is a rather murky and ill-defined charge. Even Obama’s Justice Department, which has claimed since at least 2009 to have the broad detention authority now codified in the NDAA, admits that “it is neither possible nor advisable to attempt to identify, in the abstract, the precise nature and degree of ‘substantial support’” necessary to make detaining an individual indefinitely in military custody legally kosher. Pretty broad strokes.
Scrolling down the bill a bit, we find that the NDAA’s authors sought to grant some assurance to the liberty-loving American public: “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.” Great…. what’s the “existing law” on detaining US citizens, then? “That’s the rub,” explains Nancy Murray of the ACLU of Massachusetts. “President George W. Bush and the US Court of Appeals for the Fourth Circuit interpreted the Authorization for the Use of Military Force (AUMF) to permit the indefinite military detention of an American citizen seized on US soil, José Padilla.” Padilla was held for two years in a South Carolina military brig without access to a lawyer or his family, a denial of due process upheld by the courts in the name of national security.
So what seems to be a provision shielding American citizens and legal residents from indefinite military detention is, as Glenn Greenwald puts it, “purposely muddled.” Brookings Institute fellow Benjamin Wittes more meekly explains, “Congress ultimately included language in the NDAA expressly designed to leave [indefinite detention of citizens] untouched–that is, governed by pre-existing law, which is unsettled on this question.”
In fact, Congress thrice rejected amendments explicitly barring the indefinite detention of citizens.
Now, Obama vowed upon signing NDAA that his administration “will not authorize the indefinite military detention without trial of American citizens,” saying that he believes “that doing so would break with our most important traditions and values as a Nation.” Which is kind of him. And Senator Feinstein (D-CA) immediately introduced the “Due Process Guarantee Act” to require explicit authorization by Act of Congress for such detention of citizens. Again, quite nice.
But all of this muddled hemming to parse out whether the President can detain citizens as “enemy combatants” (or whatever the extralegal buzz term is now) just the same as dirty foreigners obscures the wider symbolic implication of the NDAA.
Whether or not this particular bill actually expands the President’s detention powers, it is a glaring reminder of just how much the War on Terror has shifted the debate over civil liberties and national security. Just like Congress made quick work of renewing the PATRIOT Act earlier this year without batting an eye at its permissive (but, of course, classified) interpretation by the US Attorney General, our representatives are apparently willing to support misty legislation on the (admittedly trivial) matter of whether their constituents continue to enjoy due process once charged with committing, aiding or supporting terrorism. Some who seek to defend the NDAA pout that its provisions are “not McCarthyist.” The need to defend it against such a charge in the first place is chilling.