Bill dangerously enhances military detention power

In a sharp turn from his dismal record on restoring civil and human rights in the "War on Terror," President Barack Obama last week renewed his threat to veto the Pentagon budget after the Senate passed a controversial funding bill that requires military detention of terrorism suspects, including U.S. citizens, and indefinite detention without trial in some cases.

The provisions, included in a $660 billion 2012 defense bill that passed the Senate on Dec. 1 in an overwhelming 93-7 vote, would require terrorism suspects to be held by the military and tried by U.S. military commissions, or even held indefinitely. The White House does not frame its opposition in terms of protecting civil liberties, but more as a constraint on the administration's ability to transfer prisoners from Guantanamo Bay to the United States, try them in civilian court, or even transfer them to foreign countries.

The provisions have also drawn opposition from the secretary of defense, the director of the FBI, the director of national intelligence and the attorney general. Previously, the Senate voted 38-60 to reject an amendment offered by Sen. Mark Udall (D-Colo.) that would have removed these provisions.

The National Defense Authorization Act (NDAA) would do three dangerous things: expand the scope of the government's power to detain terrorism suspects without trial; mandate military detention of certain non-citizen terrorism suspects (and bar their prosecution in civilian federal courts); and make permanent what have thus far been temporary spending restrictions barring the president from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

For over 10 years, the war on terrorism has been conducted pursuant to the Authorization for the Use of Military Force (AUMF), enacted by Congress on Sept. 18, 2001, which empowered the president "to use all necessary and appropriate force against those ... he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored [those who did]."

But the AUMF was silent on whether it authorized any non-criminal detention; specifically authorized the detention of U.S. citizens; specifically authorized the detention of individuals lawfully present within the United States at the time of their arrest; or included any temporal or geographic limitations on the authority it provided.

Over the past decade, the U.S. Supreme Court and lower federal courts have established that the AUMF authorizes detention, including of U.S. citizens, captured on foreign battlefields but should be read consistently with international law. While lower courts have reached conflicting decisions on whether the AUMF authorizes the detention of U.S. citizens (or non-citizens) lawfully in the United States, the Supreme Court has thus far ducked the question.

The problem is that Section 1031 of the NDAA would add new detention authorization: "A person who was a 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." The dangerous sweep of this provision means that an individual could be detained for providing "direct support," including minor financial or logistical assistance, in aid of "associated forces" that are "engaged in hostilities against ... coalition partners." Thus, the NDAA would authorize the military detention of any individual who provides such assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in, or affected by, that particular conflict.

Since the NDAA encompasses undefined "associated forces," the U.S. government could target a wide range of political dissidents, human rights activists, humanitarians, and maybe even "occupiers."

"Material support for terrorism" under the USA Patriot Act has been interpreted by the Supreme Court to include humanitarian aid and mere advocacy speech, without proof the accused intended to support any kind of terrorist violence. The Department of Justice has been using this interpretation for over a year to investigate 23 American citizens who are anti-war activists in Chicago and Minneapolis.

If it becomes law, the NDAA would eliminate the requirement that detention be tied to a group's responsibility for the Sept. 11 attacks; it would violate international law by authorizing detention of individuals who may have never committed a belligerent act; and it would effectively convert our conflict against those responsible for Sept. 11 into a worldwide military operation against an unlimited array of terrorist groups engaged in hostilities against virtually any of our allies.

But what is most alarming is how the NDAA would drastically change the rule of law inside the United States. Using Orwellian language, Section 1031(d) provides that the NDAA's authority does not apply to individuals lawfully present within the United States (including U.S. citizens) "except to the extent permitted by the Constitution of the United States."

Whereas this provision might appear to bar such detention, it in fact authorizes it, since the principal constraint on the government's power to detain U.S. citizens is a 1971 Act of Congress that provides that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Under Section 1031, the NDAA would be just such an Act, since its text specifically authorizes detention to the extent that it is not barred by the Constitution.

According to Coleen Rowley, a FBI special agent for almost 24 years and legal counsel to the FBI Field Office in Minneapolis from 1990 to 2003, who came to national attention in June 2002 when she testified before Congress about serious lapses before Sept. 11 that helped account for the failure to prevent the attacks, if the NDAA becomes law "the government would be able to decide who gets an old fashioned trial (along with right to attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo."

Rowley asks: "Does anyone remember that none of the first thousand people the FBI rounded up after 9-11, and which were imprisoned for several months (some brutalized) were ever charged with terrorism? Does anyone remember that hundreds of the Gitmo detainees who were handed over to their American military captors in exchange for monetary bounties were found, after years of imprisonment, to have no connection to terrorism?"

Shockingly, Sen. Lindsey Graham declared that suspected U.S. citizens open themselves up "to imprisonment and death." "And when they say, 'I want my lawyer,' you tell them: 'Shut up. You don't get a lawyer.'"

"The bill is an historic threat to American citizens and others because it expands and makes permanent the authority of the president to order the military to imprison without charge or trial American citizens," said Christopher Anders, senior legislative counsel for the American Civil Liberties Union . "This bill puts military detention authority on steroids and makes it permanent. If it becomes law, American citizens and others are at real risk of being locked away by the military without charge or trial."

Hopefully, for the sake of our constitutional democracy, President Obama will keep his threat to veto this dangerous legislation - and his veto will not be overridden.