Misreporting II: NDAA and Indefinite Detention of U.S. Citizens

So, this post is about 2 months, or 10 years too late, as will be explained.  On 12.31.11, President Obama signed into law the National Defense Authorization Act.  While there is a good deal to be gravely concerned about in the NDAA, much of the commentary focused on components of the NDAA which would supposedly "allow the military to indefinitely detain terror suspects, including American citizens arrested in the United States, without charge."

The NDAA did no such thing.


 The provision of the NDAA in question is section 1021, which provides:

(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

 Apparently, however, commentators couldn't be bothered to read just a few paragraphs in to the same section, which further provides,

(e) AUTHORITIES.—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.

 In other words, the NDAA's detention provision -- by its very terms -- does not grant any new powers in relation to the detention of U.S. citizens arrested in the United States.

The problem is that the Authorization for Use of Military Force (AUMF) of 2001 referenced in the NDAA is open to an interpretation that allows such detention.  The NDAA, however, simply does not resolve the issue.

If the AUMF is interpreted as granting that detention power re: U.S. citizens arrested in the U.S, then that power was already granted.  If the AUMF is not so interpreted, the NDAA does not grant any new power to so detain U.S. citizens.  Either way, the NDAA itself explicitly does not do what is claimed, namely "allowing the military to indefinitely detain... American citizens arrested in the United States, without charge."

Having said that, there is plenty to be concerned about with regards to the NDAA, and one example will be given here, staying within this detention section.  While it purports to affirm authority given in the 2001  AUMF, it actually expands that authority.

The AUMF states in whole,

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

 The NDAA, however, defines a covered person as including:

(2) 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.

  In other words, a whole new class of persons is targeted by the NDAA.  The widest net cast by the original  AUMF covered those who "aided" the terrorist attacks of 9.11.  The NDAA, however, casts the net further, covering those who "substantially supported" al-Queda, the Taliban, or "associated forces."  That kind of vagueness invites abuse.

As a final note, there is a bill making its way through Congress that actually does pose the potential dangers spoken of above: the Enemy Expatriation Act, which will be the subject of its own post soon.  In short, the bill would make it easier to strip an accused terrorist suspect of U.S. citizenship.  That, in combination with the NDAA, would have sobering implications... to put it mildly.