'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.

But those accused terrorists were foreigners, so there’s no need for us Americans to worry, right? Not exactly. While section 1032 specifically exempts American citizens and lawful resident aliens from the mandate, military detention would remain an option for U.S. citizens accused of terrorism, just not a required one. So much for the 6th Amendment’s guarantee of the right to “a speedy and public trial.”

Section 1031 still permits the government to indefinitely detain Americans accused of terrorism in military custody. As a result, Democratic Sen. Diane Feinstein revised the language in a last-minute amendment, which says:

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.

The problem is that existing law pertaining to the indefinite detention of U.S. citizens or legal residents on U.S. soil is fuzzy. As the Senate debated these provisions, both sides claimed that the 2004 Supreme Court case, Hamdi v. Rumsfeld, supported their positions. The Supreme Court ruled that U.S. citizen Yaser Esam Hamdi, who was apprehended in 2001 during the invasion of Afghanistan, could not be held by the military indefinitely without habeas review.

However, in the Hamdi case, the court ruled only that detainees could challenge their status as an “enemy combatant.” It didn't guarantee them the right to a fair trial. (In a subsequent case, Hamdan v. Rumsfeld, the court ruled against the military commissions enacted by Bush, because they violated the Geneva Conventions, but it did not grant detainees access to the courts. Instead, it mandated only that military tribunals comport with our treaty obligations and the Uniform Code of Military Justice.)

According to Anders, “The two most recent times where the Supreme Court could have clearly made a decision on what the scope of detention authority is, particularly for people picked up away from any battlefield, including U.S. citizens, they did not decide those cases because the court no longer had jurisdiction over that issue.” He was referring to the cases of Jose Padilla and Ali Saleh Kahlah al-Marri.

In the aftermath of 9/11, the Bush administration held U.S citizen Jose Padilla in a military brig as an enemy combatant for nearly four years without charges, on suspicion of plotting a dirty bomb terrorist attack. Just as the Supreme Court was preparing to rule on the constitutionality of the President’s actions, the Bush administration conveniently removed Padilla from military custody and charged him in criminal court, rendering the case moot.

In December 2001, Ali Saleh Kahlah al-Marri, who was living in the United States on a student visa with his wife and five children, was arrested for credit card fraud and lying to federal agents. In 2003 the government accused al-Marri of being an al-Qaeda sleeper agent, designated him an “enemy combatant” and transferred him to military detention, where al-Marri, the only noncitizen to have been held as an enemy combatant on U.S. soil, spent nearly six years in solitary confinement at a Navy brig in South Carolina. The Supreme Court agreed to hear al-Marri’s case in late 2008, but by early 2009, the Supreme Court dismissed it because the Obama administration filed criminal charges against al-Marri in civilian court.

As a result, says Anders, “The Feinstein language potentially doesn’t change anything, because it’s still operating on this background of uncertainty.”

To his credit, Obama has not imprisoned U.S. citizens in military detention, nor has he attempted to. His administration has even voiced concern about the bill’s military detention provision in its application to U.S. citizens, threatening to veto it on the grounds that it “would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.” Almost the entire national security establishment has come out against this bill as well, including Defense Secretary Leon Panetta, Director of National Intelligence James Clapper, FBI Director Robert Mueller, DOJ National Security Division head Lisa Monaco, and CIA Director David Petraeus, who believe these provisions are harmful and counterproductive to national security.

Still, Obama’s assessment that indefinite detention raises “serious and unsettled legal questions," while true, is ironic given his claim to another controversial executive power: reserving the right to assassinate American citizens abroad without an ounce of due process, which led to the extrajudicial assassination of U.S. born Muslim cleric Anwar al-Awlaki.

The World As Our Perpetual Battlefield 

Receiving far less attention, though equally as important, is section 1031, which expands the definition of who is eligible for military detention and where the battlefield in the War on Terror lies.

The 2001 Authorization for Use of Military Force (AUMF) only authorizes force “against those nations, organizations, or persons” who the President determines “planned, authorized, committed, or aided the terrorist attacks” of Sept. 11, “or harbored such organizations or persons.”

But under Levin/McCain, the AUMF extends the scope of the War on Terror even further, by authorizing force against “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.” As Glenn Greenwald points out, “This is intended to allow force to be used against groups that did not even exist at the time of 9/11 — such as the ones in Yemen and Somalia — as well to allow force against persons who may not be a member of those groups but who provide ‘substantial support.’”

Again, this is essentially what the U.S. government is already doing. As early as 2009, the Obama administration argued that the President’s AUMF powers extend far beyond Al-Qaeda and the Taliban to include “associated forces.” It is under this expansive interpretation that the Obama administration justified bombing Yemen and Somalia. For example, the Somali terrorist organization Al-Shabaab, which did not exist until 2006, is said to be a legitimate target due to alleged connections with al Qaeda, yet according to the Council on Foreign Relations (CFR) Backgrounder, “any organizational linkage between the two groups is weak, if it exists at all.”

Anders describes this section as a “backdoor way to expand and make permanent the 2001 AUMF” by delinking the AUMF from 9/11. “Even though the previous two administrations have claimed broad powers stemming from the AUMF, and the courts have sometimes agreed with those claims, they must still have a tie to the 9/11 attacks. The NDAA breaks that tie and instead makes it a military war against terrorism suspects everywhere and anywhere,” says Anders.

If the Obama administration vetoes the NDAA in its current form as it has explicitly threatened to do, it would be a welcome relief. As Daphne Eviatar of Human Rights First points out, Obama has little reason not to veto:

The actual impact of vetoing a defense authorization bill is minimal. Four presidents — including Ronald Reagan and George W. Bush — have done it in recent decades. The government will still pay the troops and spend what’s necessary to sustain the military; the NDAA is only designed to authorize new programs.

Still, a veto would not reduce the ever-expanding power grabs that render the U.S. Constitution worthless whenever the word "terrorism" is invoked. The Obama administration continues to indefinitely detain “enemy combatants” in response to legacy cases left over from the previous administration; a broad interpretation of the 2001 AUMF continues to perpetuate endless war; and Obama has gone further than any other president in reserving the right to assassinate Americans abroad, appointing himself judge, jury, and executioner, due process be damned.

What Next? 

With an agreed upon version of the NDAA out of conference committee, lawmakers are looking to vote on the final bill in the House and Senate as soon as Thursday. If it passes, which is likely, it will then go to President Obama’s desk for a signature. 

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