The 2013 NDAA & Obama’s Expansion of Indefinite Military Detention Powers

by Kevin Gosztola

The administration of President Barack Obama has gone much farther in defending and expanding indefinite detention powers than the administrations of President George W. Bush ever attempted. With the Feinstein Amendment in the 2013 National Defense Authorization Act (NDAA), such powers are set to be further expanded, according to Bruce Afran, a lawyer who has helped a group of individuals bring a lawsuit against a provision of the 2012 NDAA that granted the United States military the authority to indefinitely detain US citizens without charge or trial.

Afran described “under the guise of adding protection for people in the US,” the amendment offered by Sen. Dianne Feinstein makes the problem worse. If the 2013 NDAA is passed by the House and signed by the president, it will mean that people can be detained in the US indefinitely because now it will no longer be subject to interpretation. The law will expressly say people can be held in military detention indefinitely.

Though it was supposedly intended to fix problems created by an indefinite detention provision in the 2012 NDAA, the main aspect of the law being challenged in the courts will not change.  All that will change is a regulation will be added that a US citizen or permanent resident must be given a trial.

“What kind of trial will that be? It will be a military trial because that’s the only thing that’s referenced in the NDAA,” said Afran.

There are no regulations in the 2012 law or 2013 amendment governing how a person would get to the civil courts. As Afran explained, “Everyone has a right to habeas corpus but the NDAA does not provide any rules the military has to create as to how a person can use that right. It doesn’t say how long they will have to contact the court, doesn’t say their family must be notified they’ve been detained, doesn’t specify they’ll be given counsel—It contains none of the procedural rules that allow people to use their rights.”

Afran added, “Even if you have habeas corpus to go to court and say the military shouldn’t take me, there’s no regulations as to how [a person] could make use of that right. The military could hold [a person] for months or years before letting them get access to the courts.”

Another key problem with the 2013 NDAA is it “leaves out a big class of people, people who are legally here but are not citizens or permanent residents. Students, for example, from other countries [who] are here on visas but [are] not permanent residents.”  There are millions of students in the US. There are also tourists, Afran said. All could be subject to indefinite military detention.

Afran declared, “There is no difference in the US Constitution between people in the US who are citizens” and those who are not. Everyone in the country is “entitled to the same rights” whether they are a citizen, a permanent resident, a student with a visa or an illegal alien. In fact, he noted, an illegal immigrant could be put in immigration jail and be deported but could not be put in military jail.

The Constitution says, “No persons shall be held in jeopardy of life or liberty without due process of law.” But, the Feinstein Amendment “leaves very vulnerable many people who the government would target – students from other countries, Arab countries, for example, who are legally here but are not permanent residents.”

In January, journalist Chris Hedges filed a lawsuit alleging the indefinite detention provision in the 2012 NDAA was unconstitutional. Occupy London co-founder Kai Wargalla, WL Central writer and US Day of Rage founder Alexa O’Brien, Icelandic parliamentarian Birgitta Jonsdottir, RevolutionTruth.org founder Tangerine Bolen, writer Noam Chomsky and whistleblower Daniel Ellsberg joined the lawsuit and, in March, Judge Katherine Forrest heard argument that the provision put them at risk because of activities they had engaged in professionally to defend civil liberties and human rights.

Forrest found the plaintiffs had standing and had proven the provision could result in an “imminent and particularized, invasion of legally-protected interests.” The government was given ample opportunities to prove the power would not be used toward First Amendment-protected activities but did not reassure the judge that the power would be used solely toward individuals engaged in combat. In September, the judge announced a decision where she found the indefinite detention provision to be unconstitutional and issued a permanent injunction. The Obama administration immediately filed an appeal and requested a stay from the Second Circuit Court of Appeals, which was granted less than a week later.

Afran agreed this would mean the Authorized Use of Military Force (AUMF), which has given the US the power to transform the world into a battlefield for just about any type of military or covert operation, would now be in force domestically. It would violate Posse Comitatus, which is supposed to prevent the use of military personnel to enforce domestic law. It would also violate rulings in prior Supreme Court cases on military detention.

The “fix” to the law may be an effort to make legal what the Obama administration recognized was illegal. The government has likely been detaining people “far too broadly under the AUMF.” They probably wanted to expand the power so it would be harder to accuse the government of violating the law, Afran suggested.

He noted Judge Forrest had asked the government if it was using statutes in the 2012 NDAA. Lawyers for the government could not give an answer because apparently the government does not keep track of what laws they are detaining people under.

One of the government’s reactions to the September ruling, when an injunction was issued, was to bluster about how it would have implications for US forces detaining people in Afghanistan. But, Afran said, “They’ve never had the right to detain a person that’s not a combatant whether it’s in Afghanistan or anywhere.”

The Supreme Court made that clear. You can only detain people that are combatants. The Bush Administration always took that position; never took the position of detaining people who are not combatants. The Obama administration has made that change and, in fact, three federal courts stated the Obama administration has shifted the government’s position from combatant detention to mere supporter detention. So, it’s the Obama administration that seems to be broadening detention standards beyond the Bush Administration limit on combatancy as a basis for detention. But they’ve never had the power to detain anyone except a combatant whether under US law or international law.

Forrest was careful in her decision to make clear the AUMF remained in force and would still allow for the detention of people who were combatants. They just could not be detained for “substantially supporting” any groups the government considered to have ties to al Qaeda or its affiliates.

Afran characterized the complaints by the Obama administration as a “panic response” that really is “shocking.”

“It’s more like Nixon than Obama because it’s really looking to preserve expansions of federal power, which is really very surprising,” he outlined. “The Bush administration never went as far as the Obama administration is going and what’s interesting is as the terrorist threat has receded they’re becoming more and more expansive in the power they want. We haven’t had any attacks in years and yet paradoxically the Obama administration wants more anti-terrorism powers in US.”

After citing the Wall Street Journal story on the National Counterterrorism Center now gathering information on individuals without probable cause, Afran concluded, “They’re reacting to any judicial limitation on their powers because they’re policy goals is to expand those powers and they see Judge Forrest’s decision and injunction as a threat to the general policy goal of expanding their anti-terrorism authority.”

As a “matter of principle,” those involved in the NDAA lawsuit filed an emergency motion at the Supreme Court to lift the stay. It was denied by Justice Ruth Bader Ginsburg because the lawsuit was already going to be heard on an “expedited schedule.” This was not a decision based on the “merits” of the lawsuit so Afran said it should not have much effect on whether the lawsuit prevails or not.

Last year, President Barack Obama signed the 2012 NDAA on New Year’s Eve. George Washington University law professor called it the moment “when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.”

This year, the country should expect the same. No matter how much President Obama says in public about what he does not like in the bill (i.e. how it could restrict his ability to close the Guantanamo Bay prison), he will sign it while most Americans are distracted with ringing in the New Year. And, in 2013, the government will go to the appeals court and claim, if there was a problem with indefinite detention powers, there can be no question that it no longer exists because the Congress “fixed” it.

Those behind the lawsuit against the 2012 NDAA will know that is simply not true. They’ll keep pressing on with the courage of their convictions. People familiar with the expertise shared by Afran will understand the government is being deliberately misleading. The reality will be laid bare once again: the Obama administration will go to any length to preserve expansions of executive powers, even powers it wants the public to somehow believe it will never use.

This article originally appeared on the blog The Dissenter

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