Indefinite Detention Under the NDAA: the Great Attack on Civil Liberties You May Not Have Heard About

On December 31, 2011, President Barack Obama signed the 2012 National Defense Authorization Act (NDAA) into law.  Many of you may not have heard of it because the holidays aren’t exactly conducive to keeping up with current events, but the NDAA represents one of the most dramatic attacks on civil liberties in this country in many years. While the NDAA contains many routine provisions related to defense spending, there are two particular provisions that should deeply trouble any American concerned with the encroachment upon civil liberties that has been the hallmark of post-9/11 America.

Section 1021 affirms that the 2001 Authorization for Use of Military Force (AUMF) authorizes detention of anybody whom the President determines was involved in the attacks of 9/11, as well as detention of anybody who substantially supports or is a member of al-Qaeda, the Taliban or associated forces.  This detention is authorized so long as the hostilities authorized by the AUMF are ongoing.  Of course, because the battle against al-Qaeda may never end, Section 1021 is essentially a de facto authorization of indefinite detention.

Section 1022 states that if an individual is detained under the authority of Section 1021, that person must be held by the military. This mandate does not apply to a citizen or lawful resident of the United States.  Put these sections together and a scary picture emerges in which a person accused of being a member of a terrorist group, or even of substantially supporting one, can be detained by the military as long as the United States is at war with al-Qaeda.

This codification of indefinite detention is chilling because it represents how quickly and drastically our nation’s discourse about civil liberties has changed in just a few years. Fewer than four years ago we elected a president who explicitly and strongly campaigned on closing Guantanamo Bay, the internationally infamous facility in which terrorist suspects were being indefinitely detained.  Now that same president is signing a bill codifying some of the practices against which he had so vigorously campaigned.  So long as George W. Bush was indefinitely detaining terrorism suspects Democrats could criticize it as representing the worst of the Bush regime and civil libertarians could decry it as a panicked overreaction to 9/11.  And while it is true that Obama had long claimed to have the authority to indefinitely detain terrorism suspects prior to the passage of the NDAA, his position could be seen as representing only the viewpoint of one president trying to arrogate power.  But now indefinite detention is not a partisan issue, nor can it be described as a panicked reaction or an overreach by a greedy branch of government.  Instead, ten years after 9/11, it has been written into our laws by a bipartisan legislature that is codifying the practices of two presidencies from two different parties.  Imprisonment without trial, that hallmark of tyranny which seems so anathema to a nation that values freedom and a governmental system based on checks on government and due process, has been written into the laws of this country with shockingly little outcry from the American people.

Another worrisome aspect of the NDAA is that it may authorize the indefinite detention even of American citizens captured within the United States.  The bill’s language is ambiguous: 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…” But Section 1022 says that the requirement that the detainees be held by the military does not apply to American citizens, a confusing clarification if American citizens are not eligible to be detained under 1021 in the first place.  Keep in mind that detention is authorized by a mere presidential determination that somebody has substantially supported al-Qaeda, the Taliban, or associated forces.  The prospect that a president could use this wide grant of discretion to detain American citizens should disturb all of us.  Even if we do not fear that we ourselves will ever be detained, we should fear for what happens to democratic discourse, dissent and political action when the government is given the power to imprison people without trial based on mere allegations and with minimal process.

Even though you or I may never suffer due to the indefinite detention provisions of the NDAA, we should not tolerate a system in which there is a very strong chance that people will be incarcerated for the rest of their lives without committing any crime or posing any threat to the United States.  While that may seem like an outlandish fear, our experience in Guantanamo illustrates just how fallible the Executive Branch can be in determining who needs to be confined without  trial.

The American Civil Liberties of Harvard Law encourages you all to make your voice heard and demand that Congress respect the principle that everybody deserves a day in court before being imprisoned for life.  We are circulating a petition demanding that Congress repeal Sections 1021 and 1022 of the NDAA.  To sign it, you can go to our online survey at http://hlsorgs.com/aclu/2012/02/22/sign-the-ndaa-petition-here/.

We also invite you to “The NDAA and Indefinite Detention in American Law,” a discussion with Professors Noah Feldman and Jack Goldsmith of the prime issues surrounding the NDAA.  The discussion will be co-sponsored by ACLU-HLS, the Federalist Society, and the American Constitution Society and will take place on Wednesday, February 29 from 12 p.m. to 1 p.m. at Ames Courtroom.

Ariel Schneller, Law ’12, is a member of the executive board of American Civil Liberties Union, Harvard Law School Chapter.