Controversy over indefinite detention National Defense Authorization Act for Fiscal Year 2012

1 controversy on indefinite detention

1.1 american , international reactions
1.2 views of obama administration
1.3 legal arguments legislation not allow indefinite detention of u.s. citizens
1.4 legal arguments legislation allows indefinite detention
1.5 proposed legislative reforms

controversy on indefinite detention

h amdt 1127 repeals indefinite military detention provisions

house vote congressional district.









s amdt 3018 - prohibits indefinite detention of citizens , lawful permanent residents

senate vote state.










—excerpts ndaa 2012, sections 1021 , 1022.
american , international reactions

section 1021 , 1022 have been called violation of constitutional principles , of bill of rights. internationally, uk-based newspaper guardian has described legislation allowing indefinite detention without trial [of] american terrorism suspects arrested on u.s. soil shipped guantánamo bay; al jazeera has written act gives u.s. military option detain u.s. citizens suspected of participating or aiding in terrorist activities without trial, indefinitely . official russian international radio broadcasting service voice of russia has been highly critical of legislation, writing under authority u.s. military have power detain americans suspected of involvement in terrorism without charge or trial , imprison them indefinite period of time ; has furthermore written radical analysts comparing new law edicts of third reich or muslim tyrannies . act opposed aclu, amnesty international, human rights first, human rights watch, center constitutional rights, cato institute, reason magazine, , council on american-islamic relations, , criticized in editorials published in new york times , other news organizations.

americans have sought resistance of ndaa through successful resolution campaigns in various states , municipalities. states of rhode island , michigan, colorado counties of wade, el paso, , fremont, municipalities of northampton, ma. , fairfax, ca, have passed resolutions rejecting indefinite detention provisions of ndaa. bill of rights defense committee has launched national campaign mobilize individuals @ grassroots level pass local , state resolutions voicing opposition ndaa. campaigns have begun grow in new york city, miami , san diego, among other cities , states.

attorneys carl j. mayer , bruce i. afran filed complaint january 13, 2012, in southern u.s. district court in new york city on behalf of chris hedges against barack obama , secretary of defense leon panetta challenge legality of authorization use of military force embedded in latest version of national defense authorization act, signed president december 31. lt. col. barry wingard, military attorney representing prisoners @ guantanamo bay detention camp, noted under ndaa american citizen can detained forever without trial, while allegations against go uncontested because have no right see them .

views of obama administration

on december 31, 2011, , after signing national defense authorization act fiscal year 2012 law, president obama issued statement on addressing provisions regulate detention, interrogation, , prosecution of terrorism suspects . in statement president maintains legislation nothing more confirm authorities federal courts have recognized lawful under 2001 aumf . statement maintains administration not authorize indefinite military detention without trial of american citizens , , interpret section 1021 in manner ensures detention authorizes complies constitution, laws of war, , other applicable law . referring applicability of civilian versus military detention, statement argued responsible way combat threat al-qa ida poses remain relentlessly practical, guided factual , legal complexities of each case , relative strengths , weaknesses of each system. otherwise, investigations compromised, our authorities hold dangerous individuals jeopardized, , intelligence lost .

on february 22, 2012, administration represented jeh charles johnson, general counsel of u.s. department of defense defined term associated forces . johnson stated in speech @ yale law school:

associated force, interpret phrase, has 2 characteristics it: (1) organized, armed group has entered fight alongside al qaeda, , (2) co-belligerent al qaeda in hostilities against united states or coalition partners. in other words, group must not aligned al qaeda. must have entered fight against united states or coalition partners. thus, associated force not terrorist group in world merely embraces al qaeda ideology.

on february 28, 2012, administration announced waive requirement military detention in case in officials [believe] placing detainee in military custody impede counterterrorism cooperation detainee’s home government or interfere efforts secure person s cooperation or confession . application of military custody suspect determined national security team including attorney general, secretaries of state, defense, , homeland security, chairman of joint chiefs of staff, , director of national intelligence.

on september 12, 2012, u.s. district judge katherine b. forrest issued injunction against indefinite detention provisions of ndaa (section 1021(b)(2)) on grounds of unconstitutionality; however, injunction appealed u.s. court of appeals second circuit following day , later reversed.

the administration explained on november 6, 2012, terms substantially supported , associated forces in opening brief before u.s. second court of appeals in hedges v. obama. respect term substantially supported obama administration stated:

term “substantial support” covers support that, in analogous circumstances in traditional international armed conflict, sufficient justify detention. term encompasses individuals who, if not considered part of irregular enemy forces @ issue in current conflict, bear sufficiently close ties forces , provide them support warrants detention in prosecution of conflict. see, e.g., geneva convention iii, art. 4.a(4) (encompassing detention of individuals “accompany armed forces without being members thereof, such civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible welfare of armed forces, provided have received authorization armed forces accompany”); int’l comm. of red cross commentary on third geneva convention 64 (pictet, ed. 1960) (art. 4(a)(4) intended encompass “classes of persons more or less part of armed force” while not members thereof); see also, e.g., gov’t br. in al bihani v. obama, no. 99-5051, 2009 wl 2957826, @ 41-42 (d.c. cir. sept. 15, 2009) (explaining petitioner “was unequivocally part of” enemy force, if “was not part of enemy forces, accompanied forces on battlefield , performed services (e.g. cooking, guard duty)” them justified military detention). under principles, term “substantially support” cannot give rise reasonable fear applied types of independent journalism or advocacy @ issue here. see march 2009 mem. @ 2 (“substantially support” not include provide “unwitting or insignificant support” al-qaeda); cf. bensayah, 610 f.3d @ 722, 725 (“purely independent conduct of freelancer not enough”). [...] “substantial support” prong addresses actions “plan[ning] take arms against united states” on behalf of al-qaeda , “facilitat[ing] travel of unnamed

others same.” page 35-37, 61 in

and respect term associated forces , administration cited above-mentioned jeh johnson s remarks on february 22, 2012:

term [associated forces] understood cover cobelligerent groups fight al-qaeda or taliban forces in armed conflict against united states or coalition partners. [...] after considering how traditional law-of-war concepts apply in armed conflict against non-state armed groups, government has made clear “‘associated force’ . . . has 2 characteristics”: (1) organized, armed group has entered fight alongside al qaeda, [that] (2) co-belligerent al qaeda in hostilities against united states or coalition partners.

the administration summarized later in brief that:

associated force “organized, armed group has entered fight alongside al qaeda” or taliban , “a cobelligerent al qaeda [or taliban] in hostilities against united states or coalition partners.” page 60-61 in

nbc news released in february 2014 undated u.s. department of justice white paper entitled lawfulness of lethal operation directed against u.s. citizen senior operational leader of al qa’ida or associated force. in justice department stated respect term associated forces

an associated force of al-qa ida includes group qualify co-belligerent under laws of war. see hamily v. obama, 616 f. supp. 2d 63, 74-75 (d.d.c. 2009) (authority detain extends associated forces, mean co-belligerents term understood under laws of war ). (footnote @ page 1 in

legal arguments legislation not allow indefinite detention of u.s. citizens

mother jones wrote act first concrete gesture congress has made towards turning homeland battlefield , arguing codifying indefinite detention on american soil dangerous step . magazine has nevertheless contested claims guardian , new york times act allows military indefinitely detain without trial american terrorism suspects arrested on u.s. soil shipped guantánamo bay , writing re wrong...it allows people think 2001 authorization use military force against perpetrators of 9/11 attacks gives president authority detain u.s. citizens without charge or trial that, allows people can read constitution of united states argue else . legal commentator joanne mariner has noted in verdict scope of existing detention power under aumf subject vociferous debate , continuing litigation . in years followed september 11 attacks, aumf interpreted allow indefinite detention of both citizens , non-citizens arrested far traditional battlefield, including in united states.

other legal commentators argue ndaa not permit indefinite detention, given period of detention limited duration of armed conflict. in making claim, emphasize difference between (1) detention pursuant laws of war , (2) detention pursuant domestic criminal law authorities. david b. rivkin , lee casey, example, argue detention under aumf authorized under laws of war , not indefinite because authority detain ends cessation of hostilities. argue ndaa invokes existing supreme court precedent...that permits military detention (and trial) of citizens have engaged in hostile acts or have supported such acts extent classified combatants or belligerents . reflects fact that, in view, united states is, pursuant aumf, @ war al-qaeda, , detention of enemy combatants in accordance laws of war authorized. in view, not preclude trial in civilian courts, not require detainee charged , tried. if detainee enemy combatant has not violated laws of war, not chargeable triable offense. commentators share view emphasize need not blur distinction between domestic criminal law , laws of war.

legal arguments legislation allows indefinite detention

the american civil liberties union has stated while president obama issued signing statement saying had serious reservations provisions, statement applies how administration use authorities granted ndaa , and, despite claims contrary, statute contains sweeping worldwide indefinite detention provision...[without] temporal or geographic limitations, , can used , future presidents militarily detain people captured far battlefield . aclu maintains breadth of ndaa s detention authority violates international law because not limited people captured in context of actual armed conflict required laws of war .

proposed legislative reforms

following passage of ndaa, various proposals have been offered clarify detainee provisions. 1 example, h.r. 3676, sponsored u.s. representative jeff landry of louisiana, amend ndaa specify no u.s. citizen may detained against or without rights of due process . other similar bills in u.s. house of representatives have been introduced representatives john garamendi of california , chris gibson of new york.

the feinstein-lee amendment have explicitly barred military holding american citizens , permanent residents in indefinite detention without trial terrorism suspects dropped on december 18, 2012, during merging of house , senate versions of 2013 national defense authorization act.