NDAA Detention Powers Under Attack From Bipartisan House Alliance

 @ashleyportero
on May 14 2012 5:42 PM
File photo of detainees sitting at Naval Base Guantanamo Bay
Human Rights Watch criticized the U.S. failure to shut down the Guantanamo Bay detention facility in Cuba. Reuters

The U.S. House of Representatives is set to revisit this week the controversial detainee provisions in the National Defense Authorization Act, the counterterrorism law that has provoked the ire of both Democrats and libertarian-leaning Republicans who say the law poses a grave threat to American civil liberties.

Rep. Adam Smith, D-Wash., a ranking member of the House Armed Services Committee, and Republican Justin Amash of Michigan plan to introduce an amendment to the military spending bill next week that would strip it of the provisions allowing the military to indefinitely hold, without a trial, terrorism suspects captured on U.S. soil. The amendment currently has 59 co-sponsors.

The bill would also alter the 2001 Authorization for Use of Military Force, enacted days after Sept. 11, 2001, which grants the president the authority to use all necessary and appropriate force against individuals determined to have participated in that day's terrorist attacks. Persons suspected of harboring those individuals or terrorist groups can also be detained under the AUMF.

Last week, Smith reportedly offered and then withdrew an amendment nearly identical to the one he's introducing to the House floor while the Armed Services committee marked up the 2013 NDAA.

It is very, very rare to give that amount of power to the president [and] take away any person's fundamental freedom and lock them up without the normal due process of law, Smith told The Hill.

Opponents of the NDAA's detainee detention provisions warn that U.S. citizens are at risk of being subjected to indefinite military detention if the law is not changed. Section 1021 of the massive budget and expenditure legislation permits the indefinite detention, without formal charge or trial, of anyone suspected of participating in or aiding a terrorist organization engaged in hostilities against the U.S.

Congress came close to authorizing the indefinite military detention of American citizens on U.S. territory who are suspected of terrorism, but the House, Senate and White House ultimately agreed on a compromise that would let federal courts decide whether such detentions are constitutional.

Although President Barack Obama promised not to use that power in a signing statement attached to the bill, the law does not explicitly prevent him -- or future presidents -- from doing so.

Smith's amendment is one of three that will be considered by the lower chamber. House Armed Services Committee Chairman Howard McKeon, R-Calif., offered a proposal earlier this month that would affirm the right to habeas corpus of any person detained in the U.S. before the AUMF became law. But it would also reinforce the military's power to detain individuals, including American citizens, simply on the suspicion of participating in or aiding terrorist activities.

Amash, who is co-sponsoring the Smith amendment, told The Hill that McKeon's proposal will not adequately fix the problem at hand because it does not prevent the military from indefinitely detaining terrorism suspects.

The problem isn't habeas; the problem is Americans being held without charge or trial forever, he said.

Yet another habeas corpus-centered amendment to the NDAA has, so far, received substantial support among House members. The bill, called the Right to Habeas Corpus Act, was proposed by Rep. Scott Rigell, R-Va., and has already amassed 32 (primarily Republican) co-sponsors.

The amendment would likely have little to no effect on the NDAA as it stands. Like McKeon's proposal, the text reaffirms the right of American citizens to challenge the legality of their detention via a writ of habeas corpus, but does not address the primary concern of the NDAA's opponents: the question of whether the U.S. can indefinitely hold suspected terrorists without charging them with a crime.

Activists on both the left and right -- including Tea Partiers, the Tenth Amendment Center, the American Civil Liberties Union, and Occupy Wall Street protesters -- have highlighted the potential consequences of allowing the NDAA's detainee provision to stand. Last month, the conservative Tenth Amendment Center, along with a number of other right-leaning organizations, filed a friend-of-the-court brief in support of liberal journalist Chris Hedges' anti-NDAA lawsuit against the Obama administration. The lawsuit currently boasts such heroes of the left as Noam Chomsky, WikiLeaks defender Birgitta Jonsdottir and Pentagon Papers source Daniel Ellsberg as plaintiffs.

Multiple states have passed anti-NDAA legislation in reaction to the public backlash surrounding the detainee provision. In Virginia, Republican Gov. Bob McDonnell recently signed a bill that could prohibit state authorities from knowingly aiding in the military detention of a U.S. citizen. Meanwhile, the Republican-dominated Arizona Legislature passed legislation that makes it a misdemeanor for state authorities to help the federal government detain American citizens under the law, while the Maine Legislature also passed a joint resolution urging Congress and Obama to amend the law to clarify that American citizens seized on U.S. soil cannot be detained without a trial.

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