The Last Word: The Power of Indefinite Detention

By William Herlands ’12

Rarely have the American people welcomed in a new year with such grim expectation. In the midst of a rather unimpressive, yet nauseatingly publicized, Republican primary, the National Defense Authorization Act (NDAA) was signed into law for the 49th consecutive year. The bill has ignited activists and laymen from across the political spectrum. Articles in the Guardian, New York Times, Forbes, Lawfare, and RedState, among others, have decried the bill as threatening American liberty and flouting the constitution. Yet a mere seven senators voted against the bill, and President Obama signed it into law on New Year’s Eve. If only the Mayan b’ak’tun was our pressing existential threat.

The National Defense Authorization Act (NDAA) has routinely passed through Congress for 49 years. While its primary purpose is to allocate spending for the Department of Defense, this year’s bill contained additional provisions for fighting terrorism. The bill’s most controversial statute, opponents argues, grants the president the power to detain US citizens suspected of terrorist activities. Indefinitely.

In order to understand the controversy, it is essential to study the statue’s text. Section 1021 of the bill, entitled “Counterterrorism”, begins by stating:

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.

For the most part, this provision simple affirms a previous law, the Authorization for Use of Military Force (AUMF). This law, passed in the aftermath of September 11, granted the president sweeping powers to defend the nation in an era of unconventional warfare. The AUMF states:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The perceptive reader will notice the discrepancy between these two laws. The NDAA expands on AUMF by permitting the president not only to “use all necessary and appropriate force” against terrorists and their supporters, but also “to detain covered persons pending disposition under the law of war”. Although detention without trial or arraignment must resolve by the “end of the hostilities authorized by the Authorization for Use of Military Force” the War on Terror has no foreseeable conclusion. Thus the NDAA effectively permits indefinite detention of anyone, including US citizens, suspected of aiding or abetting Al-Qaeda terrorist activities.

After threatening to veto the NDAA, President Obama eventually capitulated and signed the provision into law. Initially, Obama criticized a number of provisions, including an earlier section requiring military detention for suspected terrorist and supporters in the United States. That statute would have forced the executive branch to place US citizens suspected of terrorists activities under military jurisdiction. The provision was, as President Obama argued, “inconsistent with the fundamental American principle that our military does not patrol our streets”.

However, the final bill still included the expansive power to incarcerate. In order to register his disapproval, Obama included a strong worded signing statement along with his NDAA signature. “The fact that I support this bill as a whole,” the statement reads, “does not mean I agree with everything in it”. Indeed he doesn’t. The signing letter comments on over 12 sections of the complex law. The heart of Obama’s statement addressed the notorious section 1021. Referencing the controversy already brimming on December 31, Obama wrote:

Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

But why is the NDAA power of detention more serious than the executive powers already granted under the AUMF? Under the AUMF the president is empowered to use “all necessary and appropriate force” against perceived terrorists. That mandate provided justification for the targeted assassinations of US citizens Al-Awlaki and Samir Khan without trial. Why is detention a more sinister power than the sword?

In some ways it’s not. Much of the criticism of NDAA has come from political organizations already opposed to AUMF. To them, NDAA is the merely another power consolidated by the executive branch, stripped away from the demos. Yet detention presents unique problems. Unlike assassination or military force, detention can be covert. Incarceration seems less immediately problematic than murder, so it may draw less public scrutiny. In addition to pragmatic concerns, indefinite military incarceration is simply unnecessary in our country. It is difficult to imagine why a president would have to detain a US citizen without trial. However, the cases of Anwar Al-Awlaki and Samir Khan show why it might be necessary for a president to assassinate a US citizen without a trial.

Regardless of Obama’s signing statement some supporters of the NDAA legislation have claimed that the bill does not permit indefinite detention of US citizens. Representative Buck McKeon, Chairman of the House Committee on Armed Services, pointed to the 5th subsection of the section 1021. Hidden in the gargantuan NDAA text, this subsection states:

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.

According to Rep. McKeon, even though the previous subsections of section 1021 explicitly changed the law by empowering the president to detain US citizens, this subsection nullifies such a possibility. However, the author of the NDAA, Senator Carl Levin, interprets the inchoate provision differently. He agrees that the bill permits indefinite detention of US citizens. According to Senator Levin, such a power is crucially necessary in an era where the War on Terror is fought “on our shores”.

This disagreement intensifies the danger presented by the NDAA. Confusion as to whether or not the bill permits detention of US citizens exonerates the government from bearing responsibility for the bill’s consequence. Ambiguity protects those who voted for the law. They can (and do) claim the law is limited in scope and does not threaten the fundamental rights of US citizens. And ambiguity protects those who will use and abuse the law. They can (and will) claim they act within the confines of federal law and constitutional principles.

Obama’s signing statement is similarly problematic. The harsh language provides the president a guise of responsibility and idealism, yet merely whitewashes the tough reality. Signing statements are not legally binding. While political pressure and his own ideals may deter President Obama from utilizing the power of indefinite detention, the law stands. Unless amended, future presidents may use the power without being subjected to political scrutiny. They never signed Obama’s statement, and thus can ignore it while still acting in accordance with the law.

174 years ago, future President Abraham Lincoln addressed the Young Men’s Lyceum of Springfield, Illinois. Lincoln noted the increasing civil unrest in the United States in those decades preceding the Civil War. Political and social dissent was subjected to vigilante justice. A nation still in its childhood faced the specter of anarchy.

Responding to a fearful nation, Lincoln presented a way forward:

Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others… let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.

Lincoln saw the US threatened by a lack of respect for good, true laws. He pleaded with the nation to remember the virtue of freedom and submit to the almost divine glory of the law. To Lincoln, the law was salvation from anarchy. Today, we face the reverse problem. Increasingly complex and invasive government activity has discredited the federal government. Congress routinely receives record low approval ratings, and voter turnout slips each election cycle. People turn to protest movements for a warped sense of possibility, hoping that by rejecting politics, they can save the nation.

While we could debate the immediate causes for such disenfranchisement, the way forward is not trivial. With the NDAA, Congress has demonstrated a continued apathy towards the America people’s clamor for a more responsible, representative government. Regardless of the eventual affects of the law, President Obama’s capitulation has exposed his ineffective leadership in a time of national crisis. Solutions to national crises are complex. The solution to this inchoate, abusive law is not. Let’s repeal the NDAA.

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