The Defense Authorization Act and Unlawful Detention

Lynne Kiesling

Have you been paying attention to the National Defense Authorization Act (NDAA) that the Senate passed last week? I don’t blame you if you have not heard much about it, since most media have not been covering it. In addition to military expenditure authorization, it includes controversial provisions about the detention of terror suspects; as summarized by Spencer Ackerman at Wired:

But far more dramatically, the detention mandate to use indefinite military detention in terrorism cases isn’t limited to foreigners. It’s confusing, because two different sections of the bill seem to contradict each other, but in the judgment of the University of Texas’ Robert Chesney — a nonpartisan authority on military detention — “U.S. citizens are included in the grant of detention authority.” …

So despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end. And because the Senate is using the bill that authorizes funding for the military as its vehicle for this dramatic constitutional claim, it’s pretty likely to pass.

This development is disturbing in many dimensions. Note the narrowing and weakening of the long-standing habeas corpus protections of citizens against unlawful detention that our legal system inherited from English common law going back to the Magna Carta. The U.S. Constitution in Article 1, Section 9, states that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” Maybe this “cases of invasion” exception is the reason why Senator Lindsay Graham, one of the most vocal supporters of these detention provisions, argues “Is the homeland the battlefield? You better believe it is the battlefield.” A consequence of this position is, as Conor Friedersdorf notes at the Atlantic,

That quote is important, for Graham is saying that as long as terrorists are trying to recruit  on American soil, our homeland is a battlefield. That means a perpetual state of war. Here are the senators who refuse to affirm that American citizens retain the right to due process during this war that is supposedly being waged everywhere on earth and that has no foreseeable end in sight.

He then provides the roll call on one of the amendments that would have limited these detention powers over U.S. citizens. Note also that many of the Senate supporters (and the House supporters of the version passed there earlier this year) claim to be supporters of limited government, but are indeed here codifying increased government powers to wage perpetual war. How can they, and we the voters, not see the hypocrisy and venality inherent in these positions?

Glenn Greenwald highlights another disturbing dimension of this legislation — or, more accurately, of the detention and military powers of the U.S. government. He points out that President Obama may veto this legislation, not because it includes gross violations of the civil liberties of American citizens, but because it represents Congress claiming oversight of executive powers that the Obama Administration (like the Bush Administration before it) asserts to already possess: “… the Bush and Obama administrations have already successfully claimed most of the powers in the bill, and courts have largely acquiesced … this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest.” Greenwald observes:

But, with a few exceptions, the objections raised by the White House are not grounded in substantive problems with these powers, but rather in the argument that such matters are for the Executive Branch, not the Congress, to decide. In other words, the White House’s objections are grounded in broad theories of Executive Power. They are not arguing: it is wrong to deny accused Terrorists a trial. Instead they insist: whether an accused Terrorist is put in military detention rather than civilian custody is for the President alone to decide. Over and over, the White House’s statement emphasizes Executive power as the basis for its objections to Levin/McCain.

It’s truly disturbing to consider how much centralized political and military power we have allowed to build over the past decade. If the issues surrounding the NDAA are new to you, I recommend Greenwald’s post as a thorough discussion of the substantive and procedural issues. Sheldon Richman’s thought-provoking analysis at the Freeman is also a worthy read.

Finally, note (as do the articles linked above) the bipartisan nature of the support for this increase in government power and authority; a public choice theory-based analysis would easily lead you to that conclusion. Both the Republican wing and the Democrat wing of the Authoritarian Party have offered substantial support for perpetual war and the associated funding and power accompanying it, for both the executive branch and the “representative” branch. The discipline that’s supposed to be provided through our ability to “vote the bums out of office” seems incredibly weak here … or is this state of perpetual war truly the will of the people?

Maybe Orwell was right after all, although I thought most people saw his writing as cautionary tales rather than how-to manuals.

4 thoughts on “The Defense Authorization Act and Unlawful Detention

  1. Me, I saw the blather about it online various places.

    Then I read the Senate version (the House version doesn’t seem to, before reconciliation at least, contain any of the stuff they’re on about), specifically s.1031 and 1032, the ones they’re talking about.

    And I don’t see how any of the hysteria is supportable.

    Perhaps it’s because the problem was just bad drafting, and was fixed last week when I read the sections in question – but the version passed by the senate explicitly exempts Americans and lawful resident aliens entirely, and the language “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.” – the latter added (per Wired’s own link to LawWarfareBlog, though Wired never bothered to update with his update) by Sen. Feinstein to make things crystal clear on the matter.

    The only particularly plausible reading of that – which is possibly the only good thing Sen. Feinstein has ever done in office – is that existing case law (Hamdan, etc.) is completely unchanged – and thus there is nothing like even a whiff of a removal of habeas rights.

    (Contra Greenwald, I don’t see a problem with “indefinite military detention” per se; that’s what one is supposed to do with war prisoners per the Third Geneva Convention; hold them until the war ends. What is one supposed to do with eg. al Quaeda members?

    Release them? We’ve tried that – they come back again, actively hostile. So that’s not tenable or exactly compelling.

    Try them under civil law? It’s not illegal to be a foreign national, hostile to the US – or even attacking it – in another country, turns out – just as it wasn’t a violation of US law to be a German or Japanese soldier during WW2.

    [Now, a US citizen doing that would be guilty of treason, which is a fine reason why indefinite detention for US citizens is not allowed by the bill; there’s no need for it. No need to keep them until hostilities cease and then repatriate them, since they’re not foreigners.]

    Summary execution? Even worse than holding them indefinitely.

    I welcome superior alternatives, but nobody’s proposed any in my presence.)

  2. Sigivald, I believe your reading and my reading of the Senate’s bill language differ. My interpretation does take into account that they are not proposing this bill in a vacuum, but that other actions taken in all three branches of government have increased the scope for extrajudicial detention, even of Americans. Thus you misstate my claim if you think I’m saying that habeas protections would be removed. I’m saying that they have been weakened, and would weaken further because the language of this bill does not rule out extrajudicial detention of American citizens without due process.

    Here’s a superior alternative: let’s acknowledge that terrorist threats are substantially weak, reduce military expenditure and the “bread and circus” proclamations that threats still exist in Iraq and Afghanistan, and give no credence to the “perpetual war” mindset that diverts our resources and our cognitive activity from other, more valuable things. Let’s have politicians who have the cojones to say life is not risk-free, and our civil liberties are not worth what we are giving up in resources and in rights to get this false appearance of a risk-free life.

    I know that politicians and the security-military-industrial complex profit handsomely from implementing security theater in a way that is supposed to make us feel like we wouldn’t be safe without it. We need to change that relationship if we are to avoid a police state. I fear that we’re too late and too many of us are too complacent, as long as the bread and circus are available and American Idol is on the DVR.

  3. “I don’t see a problem with “indefinite military detention” per se; that’s what one is supposed to do with war prisoners per the Third Geneva Convention; hold them until the war ends.”

    Agreed. This made sense when war was something you declared against nation states and when it involved massed confrontations between armies wearing uniforms. It’s relatively easy in those situations to determine whether you are at war (i.e., you don’t have to take the state’s word for it) and with whom and who might be an enemy combatant. The opportunities for abuse by the state are limited. Is there not a legitimate concern that there might be abuse when the only reason we know that we are at war and with whom is when in effect the state and its infallible intelligence apparatus say we are, particularly given the potential for a continuous state of war (a la 1984), the fact that the state’s security personnel (TSA) seems perfectly happy to search the diapers of extremely ill 80 year old women in wheelchairs, effectively assault autistic children, and grope the genitals of its citizens, and the US government, acting as prosecutor, judge, jury and executioner, executes US citizens abroad in sovereign countries with which the US is not at war without recourse or public evidentiary requirements?

    I am wondering at what point supposedly liberty-loving individuals (“land of the free” and all that) consider the possibility that a) there is no Santa, and b) trusting the state’s good intentions may not always be wise?

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