On December 31, 2011, President Obama signed the National Defense Authorization Act (NDAA), a bill that contains sweeping provisions authorizing the indefinite detention of terrorism suspects. While initially threatening to veto the bill, Obama relented after Congress passed certain amendments that supposedly limited the statute’s detention provisions.

The controversial and troubling aspects of the bill center on provisions contained in a section labeled “Counter-terrorism.” Some of these provisions further institutionalize Bush Administration approaches to dealing with terrorism and national security, including entrenching the broad powers of the Executive Branch to detain foreign terrorism suspects, making it nearly impossible to close Guantanamo prison facility, and further undermining the possibility for civilian trials for Guantanamo detainees. According to some legal commentators, because these provisions simply reiterate the status quo, concerns over their passage are overstated. It is, however, truly a sad state of affairs when some of the countries leading legal minds shrug their shoulders at the ever-increasing cannon of legislative acts transferring the judiciary’s authority to adjudicate individual rights and liberties to the Executive Branch and military.

Other provisions of the bill, however, chart a new and even more disturbing course for the future of civil rights in the United States. Section 1021 mandates that terrorism suspects be detained by the military pending disposition of their status “under the laws of war.” As the bill goes on to explain, “disposition of a person under the laws of war” may include “[d]etention under the law of war without trial until the end of the hostilities authorized by the [2001] Authorization for Use of Military Force.”

Ultimately, however, the statute’s most devastating effects may result from ambiguity in the detention provisions, as well as its institutionalization of a perpetual War on Terror.

The Civil Rights Black Hole

The ambiguities in the statute center on two important issues: (1) how to handle terrorism suspects captured in the United States and; (2) the statute’s applicability to U.S. citizens. For foreign terrorism suspects captured on U.S. soil, the statute is unclear about whether the military or the U.S. courts and law enforcement agencies are responsible for detaining and adjudicating these cases.

Some argue that the statute contains limiting provisions that are likely to backstop its use in the United States. These provisions, found in subparts of Section 1021 and 1022, do not, however, address the issue head on. Section 1021 states that “[n]othing 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 Unite States, or any other persons who are captured or arrested in the United States.” Section 1022 contains a subsection stating that “[n]othing in this section shall be construed to affect the exiting criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement against with regard to a covered person, regardless of whether such covered person is held in military custody.”

These provisions are a far cry from an express prohibition on indefinite military detention of foreign terrorism suspects captured on U.S. soil.  As FBI Director Robert Mueller has stated:

Given the statute the way it is now, it does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case. And the facts are gray as they often are at that point . . . . The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we’ve been fairly successful in gaining.

The statute’s application to U.S. citizens is also less than clear. In the Presidential signing statement appended to the bill, Obama based his decision to accept the bill, in part, on amendments that supposedly limited its application to U.S. citizens:

Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

As signed by Obama, the statute states that“[t]he requirement to detain a person in military custody under this section does not extend to citizens of the United States.” However, as Glenn Greenwald has argued, this provision merely prohibits “mandatory” detention of U.S. citizens, while still allowing the Executive branch to apply the statute to Americans on a case-by-case basis. While the Obama Administration may be unwilling to interpret the statute in such a way, nothing in the bill prevents future administrations from choosing to use the statute against U.S. citizen terrorism suspects.

Both these ambiguities create a legal black hole. Congress had opportunities to clarify the bill’s inapplicability to detentions on U.S. soil and to U.S. citizens, but both amendments, introduced by Senator Dianne Feinstein, were rejected. Obama could have vetoed the bill, but did not. The abdication of responsibility by both the Executive and Legislative branches leaves the U.S. courts with the task of clarifying the meaning of these laws. For those who value civil rights and civil liberties, this alternative is far from ideal. As legal precedent from the last few years has shown, on issues of national security the federal courts, particularly at the appellate level, are particularly retrograde, often privileging national security over civil rights.

The Perpetual War

The statute also provides legal cover for the perpetuation of America’s “War on Terror.” For example, Section 1021 applies not only to those involved in the September 2001 attack, but also to those who are “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.”

As Glen Greenwald has convincingly argued this provision “is a statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama Bin Laden dead, and the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack rendered inoperable.”

In short, by including this provision, the statute not only institutionalizes a preventative detention regime for terrorist suspects, it also creates a legislative framework for what many have long feared: the indefinite continuation of the War on Terror. This, in turn, makes the legal ambiguities of the statute even more devastating. In an environment where the War on Terror is normalized and where the courts are reticent to intrude upon national security issues, the statute will remain a relevant part of American jurisprudence for some time to come. Because of its ambiguities, the degree and form of its application will be subject to Executive discretion, which may experience dramatic shifts between and even within Administrations. As such, the statute introduces a permanent regime of unpredictability and unreliability in an area of the law where the stakes are particularly high.

Conclusion

Perpetual war and badly drafted national security laws are a formula for the breakdown of the rule of law in the United States. Where legal rights are determined by political considerations, the law becomes little more than a tool for suppressing rather than protecting individual rights.  In this way, the provisions of the NDAA will undoubtedly haunt this country for some time to come.

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