The fiery debate is centered around provision 1021 in the NDAA for fiscal year 2012, signed by President Barack Obama on January 31, 2011. The provision allows for the indefinite detention of terror suspects without charges being filed against them. Many legal experts and human rights activists say that goes against the fundamental principle of habeas corpus that is a cornerstone of the American legal system.
“In no other area in criminal law in the United States is there ever an instance in which you would accused of something and not have the opportunity to appear before a judge in court,” said Lawrence M. Friedman, a law professor at New England School of Law, who has written about national security law.
Provision 1021 provides the president with the authority “to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force” which “includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.”
This includes “detention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force,” according to the document.
The provision is part of a larger defense bill that was initiated by Congress, which also addresses issues such as Department of Defense health care costs and funding.
As supporters of the provision often argue, the law does not expand the powers of the president. These powers have been permitted since Congress passed a joint resolution following the 9/11 terrorist attacks. The Bush Administration practiced indefinite detention prior to the signing of the defense bill in 2011. “This is just the Congress affirming it,” Friedman said.
So, if the president already had the power to use indefinite detention, what’s the big deal, some ask? The problem, others say, is that it helps institutionalize indefinite detention, making it a potentially potent and oppressive tool for administrations to come.
“When Obama took office, the thing about the Bush policy was [that] the Bush policy was not a policy,” said Karen Greenberg, director of the Center on National Security at Fordham Law School. “It was an ad hoc array of principles. He never codified indefinite detention. [The NDAA] is one more step towards making indefinite detention a law.”
Proponents of the indefinite detention argue that there are practical reasons that make clear the need for this national security policy.
In a statement before the Senate Committee on the Judiciary concerning a bill that would ban indefinite detention, Steven G. Bradbury, the former Bush administration acting assistant attorney general said: “We need to consider that there could well be extraordinary circumstances during an armed conflict when the President may determine it necessary to detain a U.S. citizen as an enemy combatant consistent with the laws of war.”
Bradbury, who was principal deputy of the Office of Legal Counsel in the Justice Department, noted that the bill would block the use of indefinite detention without Congressional approval in conflicts down the road, as well as the current conflict with al-Qaeda. “Such a burden could seriously impede the President’s ability to defend the Nation from attack, including in extraordinary circumstances when the threat facing the country is acute and there is a need to act with urgency,” Bradbury wrote.
But the vague language of the provision has created confusion among Americans and legal scholars about who, exactly, it applies to, and specifically whether U.S. citizens can be held indefinitely on U.S. soil, Greenberg said.
The provision says, “nothing in this section shall be construed to affect existing law or authorities related to the detention of United States citizens, lawful residents of the United States, or any other persons who are captured or arrested in the United States.”
Supporters of the provision argue that this answers the question as to whether the bill applies to Americans. But, others say the language of the provision has created a gray area, which can be extraordinarily dangerous. “People still don’t know what it means in terms of indefinite detention and who it applies to,” Greenberg said.
Greenberg argues that Obama’s statement when he signed the bill only further complicates the issue.
“The fact that I support this bill as a whole does not mean I agree with everything in it,” Obama said. “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”
Why, if the provision states that indefinite detention does not apply to American citizens, did the President find it necessary to explain this in a statement? Greenberg asks. “Very smart lawyers are still confused about whether or not this applies to American citizens.”
This provision runs the serious risk of damaging U.S. credibility abroad, opponents argue. “It’s potentially dangerous to the extent that the United States tries to portray themselves as the foremost adherents to the rule of law,” Friedman said. “Indefinite detention undermines that.”
On a more practical level, American use of indefinite detention leaves open the possibility of other countries using this same policy against American soldiers or workers in foreign countries, he said.
The House passed the NDAA for fiscal year 2013 in May, rejecting the Smith-Amash amendment, which would have banned indefinite military detention, “making it clear that individuals apprehended on U.S. soil who are suspected of terror-related activities can only be tried in a civilian court with all the corresponding constitutional protections,” according to Human Rights First, an advocacy organization.
Provision 1021 has resulted in the institutionalization of the presidential power of indefinite detention. With this, the Obama administration has “crossed a line in the sand,” Greenberg said.
So where do we go from here? Even if the Obama administration vows not to use indefinite detention after Guantanamo is closed, the provision of indefinite detention will remain, she said. It has become a tool for further administrations to use as they see fit.
“The more we go down this path of accepting it, the harder it is going to be to get rid of it,” Greenberg said. “The idea that there is going to be indefinite detention that Americans can fall back on going forward is a problem.”