House renews law allowing indefinite military detention of American citizens

WTF NDAA military detention 5.22.12

In passing the National Defense Authorization Act of 2013, the House of Representatives has renewed two controversial provisions that would allow the President to order the indefinite military detention of American citizens without charge or trial. 

Read more: List of the 299 House members who voted in favor of the National Defense Authorization Act 2013 on  May 18, 2012

Sections 1021 and 1022, first appeared in the 2012 NDAA, would allow the U.S. military to indefinitely detain any person, including American citizen captured on U.S. soil, who is suspected of being “part of or substantially supported Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners” without charge or trial.

In a nutshell, these provisions gives the President the authority to take away due process rights of all Americans guaranteed by the Constitution with little, if any, oversight. (Faced with mounting public criticism over the provision’s erosion of civil liberties, President Barack Obama was compelled to issue a signing statement in December assuring the public that his administration will not authorize “the indefinite military detention without trial of American citizens.”)

While some civil liberty advocates were hopeful that Congress would repeal the provisions in the 2013 NDAA, House Republicans rejected the bipartisan Smith-Amash amendment to “ensure that any individual detained on U.S. soil has the rights and civil liberties enshrined in the Constitution”, leaving little doubt where they stand when it comes to Americans’ civil liberties.

Smith-Amash Amendment to the National Defense Authorization Act for FY 2013

The Smith-Amash amendment, named the “Due Process and Military Detention Amendments Act”, would have repealed Sections 1021 and 1022 and prohibited the government from transferring any person “detained, captured, or arrested in the United States” to military custody. Under the amendment, any terrorism-related suspects would be held in federal custody and be tried in federal courts with “all the due process as provided for under the Constitution of the United States” instead of being tried by military tribunals, which were created and intended to prosecute war crimes of enemies captured in the battlefield. The Smith-Amash amendment was endorsed by 40 retired U.S. Generals and 24 civil liberty, human rights, and religious organizations.

Is the right of habeas corpus enough to protect American citizens in military detention?

Instead of adopting the Smith-Amash amendment, House lawmakers retained Sections 1021 and 1022 in the 2013 NDAA but added language that reaffirmed the habeas corpus rights of all military detainees; that is, unless Congress votes to suspend habeas corpus in “cases of rebellion or invasion the public safety may require it.” Basically, the House just repeated the habeas corpus rights that the Supreme Court upheld for foreign detainees held at Guantanamo detainees in the 2008 Boumedienne v. Bush ruling. With that nominal change, the House adopted the 2013 NDAA with a 299 to 120 vote.

“This does nothing to resolve the fact that individuals may still be detained for any length of time,” wrote Rep. John Garamendi (D-Calif.), a member of the House Armed Services Committee who co-sponsored the Smith-Amash amendment.

To be sure, the right to habeas corpus is important. However, it is important to understand that habeas corpus grants only the right to a judicial review of the legality of a person’s detention. It does not guarantee the right to due process, protection from self-incrimination, speedy trial, and other rights provided under the Constitution for American citizens who are placed in military detention.

“[Habeas corpus] doesn’t prevent the government from detaining Americans based on accusations that they’ve ‘substantially supported’ forces ‘associated’ with terrorists. It doesn’t guarantee Americans that the government will charge them with a crime and try them in a court of law. And it does nothing to stop the government from locking them up for the rest of their lives,” according to the Smith-Amash amendment fact sheet. “In short, habeas is no substitute for Americans’ full constitutionally protected rights.”

Jose Padilla, an American citizen held and tortured by the military under Presidential orders

The case of Jose Padilla offers a glaring example of why statutes similar to NDAA’s Sections 1021 and 1022 can threaten civil liberties and enable the miscarriage of justice.

An American citizen, Padilla was accused of supporting Al Qaeda’s efforts to detonate a “dirty” radioactive bomb in the United States. He was arrested by federal agents on a material witness warrant in 2002. Weeks later, President George W. Bush designated Padilla as an “enemy combatant” and ordered Padilla to be transferred to military custody.

Read more: Timeline of Jose Padilla v. John Yoo

As a result of Bush’s orders, Padilla was imprisoned for 4 years at a military brig in South Carolina where he was allegedly tortured. For the first 2 years of his military detention, Padilla was denied access to an attorney and his family in violation of his constitutional rights, and he was not charged with any crime until 2005. Since Padilla was unable to speak with an attorney between 2002 and 2004, he was denied habeas corpus rights to appeal his detention before a judge.

The charges eventually pressed against Padilla were unrelated to the sensationalistic claims of radioactive bomb attacks that the government used to justify Padilla’s maltreatment and military detention. Padilla was tried in federal court and convicted of lesser charges of conspiracy and aiding terrorists, which were largely based on his associational activities. Nearly 6 years after he was held in military detention, Padilla was sentenced to 17 years in prison on conspiracy charges.

Recent federal court decision on NDAA

Two days before the House vote on NDAA, a federal court judge in New York struck down Section 1021 citing the provision’s “chilling impact on First Amendment rights.”

The term “substantially supported”, U.S. District Court Judge Katherine B. Forrest ruled, was too vague and could have been applied to journalists and political activists whose works involved interviewing and associating with individuals and groups that have been deemed as hostile against the United States.

Read more: Federal judge strikes down controversial National Defense Authorization Act provision

“There is strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

Forrest’s ruling will likely be appealed by the government.


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