Indefinite Detention

By William Fisher

If President Obama now feels safer, knowing that there’s a law that gives him the power to imprison someone until the end of the “war on terror,” he must have little faith in such legal formalities as charges, indictments, trials, transparency and appeals.

That’s because none of these niceties are required for you to be jailed under the NDAA – the National Defense Authorization Act. President Obama signed the NDAA in mid-December, (after promising during his 2008 campaign that he would veto it).

According to the New York Times, you could be thrown into “indefinite military detention on suspicion that they (you) “substantially supported” Al Qaeda or its allies — at least if they had no connection to the Sept. 11 attacks.”

This is not a new idea. The government has been imprisoning – yes, let’s use the actual word, not the euphemistic “detention,” which sounds like a late homework assignment in grade school.
The United States has been detaining terrorism suspects indefinitely since 2001, basing its actions on Congress’ Afghanistan “use of military force” law against perpetrators of the Sept. 11 attacks and those who helped them. The NDAA created an actual law governing such imprisonments.

The judge, sitting in the powerful U. S. District Court for the Southern District of New York, said the language of the statute was too broad, too subject to misinterpretation because it covered not only active terrorists but “people who were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies.”

But there were no specific definitions of words like “associated forces.” The law also failed to specify whether it extended to American citizens and others arrested on United States soil. The Judge felt such lapses could lead to confusion and wrongful convictions. And the government also failed to state unequivocally that no First Amendment-protected activities would subject them to indefinite military detention.

The lawsuit was brought by Chris Hedges and a group of other writers, including Daniel Ellsberg and Noam Chomsky. Hedges is a former N.Y. Times reporter whose reporting involves interactions with terrorists. The other plaintiffs were supporters of WikiLeaks.

The New York Times quoted them as saying, the law’s “existence chilled their constitutional rights by creating a basis to fear that the government might seek to detain them under it by declaring that their activities made them supporters of an enemy group.”

Judge Forrest also weighed in on another piece of legislation. Back in May, The House of Representatives approved (301-118) extension of the FISA Amendments Act until 2012, which would have codified the power of the president to issue FISA warrants without approval from the FISA Court. According to The Times, it also retroactively rejected the George W. Bush administration’s unlawful snooping in broad violation of Americans’ constitutionally protected privacy.

But the House bill was never considered by the Senate, so no new law was passed. Republicans say they intend to re-introduce the legislation after the election in November.

Judge Forrest also slammed provisions of the FISA law, which, in combination with the National Defense Authorization Act, could result in indefinite detention. According to Greenwald, she “emphasized how dangerous this new law is given the extremely broad discretion it vests in the president to order people detained in military custody with no charges.”
But lest you think you’ve read the last page of the last chapter of this book, the Obama DOJ lost no time in filing not only an immediate appeal, but what Glenn Greenwald characterized as “an emergency motion asking the appeals court to lift the injunction pending the appeal.”

“Obama lawyers wrote a breathless attack on the court's ruling, denouncing it as ‘vastly troubling’ and claiming that it ‘threatens tangible and dangerous consequences in the conduct of an ‘active military conflict’ and ‘threatens irreparable harm to national security’. "

No one knows how all this will end. Perhaps in the Supreme Court. But for the moment, the United States does not practice indefinite detention – except in Guantanamo where there are now 167 men in prcisely that condition – a substantial number already cleared for release.

So does the President actually need the NDAA to be able to imprison people indefinitiely without charge or trial? History tells us ‘no.’

George W. Bush shipped 600+ “enemy combatants” into GITMO only with the “law” of Presidential Power. More than half the American people think Barack Obama is twice as smart as George W.

Is there anyone who thinks he won’t find a way?