The NDAA and the Militarization of America
(AntiWar.com) -- by Carl Mirra --
The National Defense Authorization Act of 2012 (NDAA) was passed by Congress and signed into law by the president on New Year’s Eve of 2011. Activists and other critics charge that the NDAA authorizes the indefinite military detention of U.S. citizens, but supporters counter that the law entails no new powers of detention for the federal government.
In a sense, both sides are right. Insofar as it affirms “existing law” as the basis for federal detention policy, the NDAA does not itself dramatically expand the government’s power to detain U.S. citizens indefinitely. The bad news, however, is that the government has essentially already claimed this authority, and the NDAA will only provide more legal cover for the executive branch to further undermine habeas corpus.
Proponents of the NDAA argue that section 1021 (e) exempts U.S. citizens from indefinite detention. The relevant text reads:
Nothing in this section shall be construed to affect the 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.But critics, including former federal judges Abner Mikva, William Sessions, and John Gibbons, are equally vigorous in their disagreement. The NDAA, they write, “codifies methods such as indefinite detention without charge and mandatory military detention and make[s] them applicable to virtually anyone … including U.S. citizens.”
Sen. Lindsey Graham (R-S.C.) is one of the few supporters of the NDAA to plainly admit that “the statement of authority to detain does apply to American citizens, and it designates the world as the battlefield, including the homeland.”
Indeed, section 1021 (e) was added after the voting down of an amendment by Sen. Mark Udall (D-N.M.), which would have made it clear that Americans were not subject to detention. As many critics noted, Congress could have stated something to the effect that, “Nothing in this act shall be construed as authorizing the indefinite detention of U.S. citizens.” It did not. That a clear statement to protect U.S. citizens was defeated in favor of a contested one strongly suggests that the NDAA does not offer safeguards for citizens.
There was, in other words, an opportunity to clear up this mess, but instead Congress left the door open for the indefinite detention of citizens.
For this reason, President Obama expressed “serious reservations” regarding the NDAA. He assured Americans in a signing statement that “my administration will interpret section 1021” in a way that “complies with the Constitution.” However, the president did not say that NDAA protects American citizens, but only that he will “interpret” it as such. As the noted law professor Jonathan Turley explains, the president does not deny that he has the authority to detain citizens — only that he will not exercise it.
Even the president, then, admits that the “existing law” provision in 1021 (e) is subject to interpretation, rendering it vague to the point of being meaningless. Existing law is, at best, under dispute with respect to the detention of U.S. citizens. The president has, after all, already asserted his authority not only to detain citizens without trial, but to assassinate them as well.
Sen. Carl Levin (D-Mich.), who drafted the NDAA, disclosed in a floor statement that the “existing law” clause in section 1021 (e) fails to insulate citizens from detention without charge. “It makes clear what we have been saying,” he said, that the bill does “not affect existing law relative to the right of the executive branch to capture and detain a citizen. … We think the law is clear in Hamdi that there is no bar to this nation holding one of its own citizens as an enemy combatant.”
Levin is referring to Hamdi v. Rumsfeld, a 2004 Supreme Court ruling that found there is “no bar” to indefinite detention of U.S. citizens as long as they are granted some limited habeas rights. Levin is arguing that it is the Supreme Court’s interpretation of “existing law,” not the NDAA’s, that permits indefinite detention.
It would be more accurate to say that although the Supreme Court has yet to fully resolve this issue, the NDAA ensures that future detentions will face fewer obstacles in the Court. A Congressional Research Service study into the matter concludes that the “plurality” of Supreme Court decisions “affirm the president’s powers to detain ‘enemy combatants,’ including those who are U.S. citizens, as part of the necessary force authorized by Congress.”...MORE...LINK