'Global Battlefield' Provision Allowing Indefinite Detention of Citizens Accused of Terror Could Pass This Week

The National Defense Authorization Act of 2012 has ignited a firestorm among civil libertarians because of provisions buried deep within the bill that would expand the military’s authority to indefinitely detain accused terrorists, including American citizens, while also effectively extending the War on Terror.

House and Senate negotiators agreed to a final bill late Monday night. Democratic Sen. Carl Levin of Michigan told reporters that the legislation reflects 96 percent of the provisions contained in the Senate version. According to the Associated Press, the conference committee left unchanged the controversial language that denies accused terrorists, including U.S. citizens arrested within the country, the right to a trial and could subject them to indefinite detention.

Perhaps the greatest controversy isn’t that the Senate provisions adopted by the conference committee, authored by Sen. Levin and Republican Sen. John McCain of Arizona, will strip people of their rights and perpetuate endless war, but that they will officially codify the radical expansion of executive power that has defined U.S. policy since the terrorist attacks of 9/11.

Christopher Anders, senior legislative counsel at the Americans Civil Liberties Union (ACLU), told AlterNet that this does not diminish the dangers posed by the provisions, which he argues “make permanent the power to indefinitely detain,” meaning “not just this president, but future presidents would be able to make use of this authority.”

Anders also warns that the courts take Congressional intent seriously. “When the executive branch and legislative branch are taking the same position, it gets a lot more deference from the courts,” he said. “In future cases where the president has the military pick up and indefinitely detain someone without charge or trial, relying on a clear statute as opposed to some radical claim on executive authority, the court” is more likely to defer.

Indefinite Detention 

Section 1032 of Levin/McCain has garnered the most outrage because it requires the military to indefinitely jail any and all accused terrorists — the keyword being "accused," not convicted. Hence, this mandate could potentially land someone in a military brig for life absent of any charges or convictions from an impartial judge, based solely on unproven accusations.

Anders points out, “The legislation is trying to work off the standards being applied to the Guantanamo cases.” Long before the NDAA of 2012, indefinite military detention was a hallmark of the Bush years with the creation of Guantanamo Bay in 2002, a legal black hole where “enemy combatants” — not only those caputured on the battlefields of Iraq and Afghanistan — were sent for extrajudicial detainment, interrogation, and notoriously, torture.

The Guantanamo Files, released by WikiLeaks in April, included classified documents on more than 700 past and present Guantanamo detainees, giving us an unusual window into the true meaning of “enemy combatant.” Among those locked up were children, the elderly, the mentally ill, and journalists. An Al Jazeera cameraman was detained at the camp for over six years and then suddenly released without ever facing charges. Nearly 100 of those imprisoned were known to have depressive or psychotic illnesses. Officials in charge found it appropriate to detain an 89-year-old Afghan villager suffering from senile dementia and a 14-year-old boy who had been the innocent victim of a kidnapping. On top of that, authorities used unreliable evidence obtained through torture to justify their detentions.

Despite all this, Obama has continued Bush’s legacy, announcing in early 2010 that his administration would continue to hold at least 50 detainees at Guantanamo without charging or trying them. By passing the NDAA 97-3, the Senate has indicated its approval of this cruel and inhumane system. The bill also includes provisions making it more difficult to transfer detainees out of Guantanamo.