Friday, January 13, 2012

Does new law allow for indefinite detention of US citizens?

Many Americans are concerned about the National Defense Authorization Act (NDAA) passed by Congress in December 2011. Rumors have spread around the internet that the NDAA contains a sweeping assault on civil liberties that includes the authority to detain American citizens indefinitely on suspicion of terrorism.

H.R.1540, “the National Defense Authorization Act for Fiscal Year 2012,” was signed into law by President Obama on December 31, 2011. According to, the House passed the bill in May 2011 by a vote of 322-96. It passed the Senate in December 86-13.

Both votes were passed by strong bipartisan majorities. The only member of the Georgia House delegation to vote against the bill was Rep. John Lewis. All other Georgia representatives, both Republican and Democrat, voted for the bill, as did both of Georgia’s senators.

The controversy centers on sections of the bill that would purportedly allow the U.S. government to detain U.S. citizens indefinitely without trial or even being charged. An alert by the ACLU from November 2011 says, “The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.” The alarmist cry was picked up by conspiracy mongers such as Alex Jones and even mainstream talk show hosts like Rush Limbaugh.

If true, the claims would be very disturbing. The right to habeas corpus, which requires the government to give cause or evidence to imprison people, is a fundamental part of American law. Article 1, Section 9 of the Constitution states, “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.” Imprisoning Americans without evidence would clearly be unconstitutional.

Section 1022 of the bill, “Military custody of foreign a-Qaeda terrorists,” allows the military to “hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.” Paragraph (2) specifies that the law covers people who are determined to become a “member of, or part of, al-Qaeda or an associated force” and who “have participated in the course of planning or carrying out an attack or attempted attack against the United States.”

Missed by the alarmists, however, is paragraph (b) of Section 1022. Paragraph (b) (1) explicitly says “The requirement to detain a person in military custody under this section does not extend to citizens of the United States” [emphasis added]. Paragraph (b) (2) further states that the law “does not extend to a lawful resident alien of the United States… except to the extent permitted by the Constitution of the United States.”

Further, in the preceding section (1021 “Affirmation of the authority of the armed forces of United States to detain covered persons pursuant to the authorization for use of military force”), the authors of the legislation also specifically excluded U.S. citizens from the detention law. Paragraph (e) says, “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.”

When the bill is examined in its entirety, it is clear that the conpiricists and alarmists are wrong. The NDAA does not allow the government to arrest and imprison American citizens without charge. Instead, the law allows the military to hold captured foreign terrorists who are captured abroad while engaging in hostile acts against the United States. In short, the law appears designed to prevent the extension of habeas corpus rights to terrorists who are not U.S. citizens or legal aliens and who are captured outside the United States.

Additionally, the law provides for a waiver in Section 1022 (a) (4). This paragraph allows the president to submit to Congress that a waiver of the requirement to hold the terrorists prisoner is “in the national security interests of the United States.” Therefore, prisoners can be released from military custody by the president if he deems that they are no threat.

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