The Harvard Law Record: Indefinite Detention Under the NDAA: the Great Attack on Civil Liberties

[stockholmer]

7. more background on the NDAA (most anything Lindsey Graham & Joe Lieberman are BOTH for, I'm against)

Jonathan Turley talked about his recent Washington Post piece http://www2.tbo.com/news/opinion/2011/nov/20/vwviewo1-are-you-being-watched-its-your-fault-ar-325736/ looking at the issues of surveillance and privacy and U.S. citizens' loss of privacy protections. He responded to telephone calls and electronic communications.

http://www.aclu.org/national-security/president-obama-signs-indefinite-detention-bill-law

“President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield. The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally.”

Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody, and many in Congress now assert that the NDAA should be used in the same way again. The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA. In addition, the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.

“We are incredibly disappointed that President Obama signed this new law even though his administration had already claimed overly broad detention authority in court,” said Romero. “Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today. Thankfully, we have three branches of government, and the final word belongs to the Supreme Court, which has yet to rule on the scope of detention authority. But Congress and the president also have a role to play in cleaning up the mess they have created because no American citizen or anyone else should live in fear of this or any future president misusing the NDAA’s detention authority.”

The bill also contains provisions making it difficult to transfer suspects out of military detention, which prompted FBI Director Robert Mueller to testify that it could jeopardize criminal investigations. It also restricts the transfers of cleared detainees from the detention facility at Guantanamo Bay to foreign countries for resettlement or repatriation, making it more difficult to close Guantanamo, as President Obama pledged to do in one of his first acts in office.

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Undermining Habeas Corpus

The NDAA and the Militarization of America

http://www.counterpunch.org/2012/02/10/the-ndaa-and-the-militarization-of-america/

The National Defense Authorization Act of 2012 (NDAA) was passed by Congress and signed into law by the president on New Year’s Eve of 2011. Activists and other critics charge that the NDAA authorizes the indefinite military detention of U.S. citizens, but supporters counter that the law entails no new powers of detention for the federal government.

In a sense, both sides are right. Insofar as it affirms “existing law” as the basis for federal detention policy, the NDAA does not itself dramatically expand the government’s power to detain U.S. citizens indefinitely. The bad news, however, is the government has essentially already claimed this authority, and the NDAA will only provide more legal cover for the executive branch to further undermine habeas corpus.

Proponents of the NDAA argue that section 1021 (e) exempts U.S. citizens from indefinite detention. The relevant text reads:


Nothing in this section shall be construed to affect the 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.

But critics, including former federal judges Abner Mikva, William Sessions, and John Gibbons, are equally vigorous in their disagreement. The NDAA, they write, “codifies methods such as indefinite detention without charge and mandatory military detention and make[s] them applicable to virtually anyone…including U.S. citizens.”

Senator Lindsey Graham is one of the few supporters of the NDAA to plainly admit that “the statement of authority to detain does apply to American citizens, and it designates the world as the battlefield, including the homeland.” Indeed, section 1021 (e) was added after the voting down of an amendment by Senator Mark Udall (D-NM), which would have made it clear that Americans were not subject to detention. As many critics noted, Congress could have stated something to the effect that, “Nothing in this act shall be construed as authorizing the indefinite detention of U.S. citizens.” It did not. That a clear statement to protect U.S. citizens was defeated in favor of a contested one strongly suggeststhat the NDAA does not offer safeguards for citizens.

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Why The NDAA Is Unconstitutional

http://www.counterpunch.org/2012/01/18/why-the-ndaa-is-unconstitutional/

Each year, Congress authorizes the budget of the Department of Defense through a National Defense Authorization Act (NDAA). The NDAA of 2012, however, is unlike any previous ones. This year’s legislation contains highly controversial provisions that empower the Armed Forces to engage in civilian law enforcement and to selectively suspend due process and habeas corpus, as well as other rights guaranteed by the 5th and 6th Amendments to the U.S. Constitution, for terror suspects apprehended on U.S. soil. The final version of the bill passed the House on December 14, the Senate the following day (ironically, the 220th birthday of the Bill of Rights). It was signed into law by President Obama on New Year’s Eve. With his signature, for the first time since the Internal Security Act of 1950 and the dark days of the McCarthy era that followed, our government has codified the power of indefinite detention into law.

This pernicious law poses one of the greatest threats to civil liberties in our nation’s history. Under Section 1021 of the NDAA, foreign nationals who are alleged to have committed or merely “suspected” of sympathizing with or providing any level of support to groups the U.S. designates as terrorist organization or an affiliate or associated force may be imprisoned without charge or trial “until the end of hostilities.” The law affirms the executive branch’s authority granted under the 2001 Authorization for Use of Military Force (AUMF) and broadens the definition and scope of “covered persons.” But because the “war on terror” is a war on a tactic, not on a state, it has no parameters or timetable. Consequently, this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability – potentially even demonstrators and protesters exercising their First Amendment rights.

One popular myth surrounding this law (which has been marketed well by the White House and the mainstream media) is that it does not pertain to U.S. persons (citizens and resident aliens). While the law does not explicitly target U.S. persons, it neither excludes nor protects them. Section 1022 of the law covers U.S. persons. The section allows for open-ended executive judgment with regard to the handling of U.S. persons. In other words, the detention of U.S persons is optional, rather than a requirement as it is for non-U.S. persons. Jonathan Turley, legal scholar and professor at George Washington University, explains that “the provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.”

Regardless of whether or not this law is interpreted as applying to U.S. persons, by specifically targeting foreign nationals, the NDAA violates the “equal protection” clause of the 14th Amendment, which guarantees that all people be treated the same under the law. Therefore, any way you slice it, this law is unconstitutional.

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"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

-- Benjamin Franklin, Historical Review of Pennsylvania (1759)