Coming Soon to a Citizen Near You: Indefinite Detention

AUTHOR: SHREYAN SEN

Indefinite military detention is here, in all its official glory, and it now applies to American citizens. When it comes to the National Defense Authorization Act, there has been a wave of confusion regarding exactly what applies to whom, and this obfuscation is incredibly dangerous at such a crucial period. I’m writing this to try and bring some clarity to the narrative you may have heard. I will try to explain my understanding of the offending sections without polemics, as anyone with a basic understanding of the Constitution will immediately grasp how outrageous the Senate’s actions are.

The narrative has been very hard to follow. The bill was drafted behind closed doors, in secret, without hearings. The Udall Amendment, which sought to remove the indefinite detention sections from the bill, failed 37-61. Much ado was made about a hastily added provision that seemed to lessen the bill’s effects on American citizens. Top Intelligence and Military officials declared their opposition to the bill, including the Secretary of Defense, the Director of the CIA, the Director of the FBI, the Director of National Intelligence, the Department of Justice National Security Division Head, and the White House Advisor for Counterterrorism.

Nonetheless, the Senate passed the National Defense Authorization Act for the 2012 fiscal year, to a 93-7 vote. Let me break down the offending sections:

• Section 1031 allows for the indefinite detention of anyone suspected of “terrorist activities” under the law of war. They are to be held without trial or charge until the “end of hostilities,” when we finally vanquish Terror, the Taliban, and all other persons engaged in hostilities against the United States. Suspects may be American citizens- Section 1031 still applies to them. Section 1031 applies “worldwide,” including American soil.
• Section 1032 requires mandatory detention of terrorists suspects by the military. Any other governmental organization (FBI for example) would, upon suspecting terrorism, be required to hand their suspect over to military authority.

Both sections contain some language attempting to claim that US citizens (and resident aliens, and in some cases, anyone arrested on US soil) are not to be affected by these changes. However, this seems to be contradictory to language earlier in the sections. In any case, last minute assurances that vast new powers will not be abused do not reassure me. President Obama has threatened to veto the new legislation, but his grounds for doing so are not as assuring- primarily, the bill changes some of the ways the President can operate (for example, forcing him to hand detainees over to military authorities). President Obama is not threatening a veto on ideological reasons. Our freedoms are no safer with the Executive Branch than they are with the Legislative.
It should be telling that the bill passed 93-7. Democrats and Republicans, supposed political opponents, seem friendly enough when their objective is a mockery of the Constitution. The brave seven who opposed the NDAA consisted of three Democrats, three Republicans, and one Independent. The bill was drafted in secret by Republican Senator John McCain and Democratic Senator Carl Levin. I am starting to wonder if the two party system isn’t a misnomer…

I encourage you to read Sections 1031 and 1032 of the NDAA, as well as the Obama Administration’s official response, where Obama explains his justification for threatening to veto: “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior
advisers.”

[Editor’s Note: In the U.S. House of Representatives, NC Democrats David Price voted against the bill, and NC Democrat Brad Miller voted in favor.  In the U.S. Senate, both members of the NC Delegation, Kay Hagan (D) and Richard Burr (R) voted in favor.]