“As president, I will end the war in Iraq. We will have our troops home in 16 months. I will close Guantanamo. I will restore habeas corpus…”
- Barack Obama, Jefferson-Jackson Day Dinner, November 2007
“I call on all Americans to commemorate this day with events and activities that teach us about this critical foundation of our Nation’s liberty, and that show us how we can protect it for future generations at home and around the world.”
- Barack Obama, Presidential Proclamation, Religious Freedom Day, 2017
The National Defense Authorization Act (NDAA) was first passed in 1961, and was written to allow for the requisition of extra funds for the United States Military to procure planes, missiles, and ships. The Authorization for Use of Military Force (Against Terrorists) (AUMF) was signed by President George W. Bush on September 18, 2001, and authorized the use of United States Armed Forces against those responsible for the attacks on September 11, 2001 and any “associated forces”. The authorization granted the President the authority to use all “necessary and appropriate force” against those whom he determined to have “planned, authorized, committed or aided” in the September 11th attacks, or who harbored said persons or groups.
As has been historically true in the other facets of government, both have grown exponentially over the years, most often flying well under the radar of common discourse. Since their respective inceptions, the NDAA and AUMF have been used to justify ongoing and constant unconstitutional actions by the United States government, most notably the Executive Branch.
In 2001, the United States was attacked on September 11, in what is to this day the worst terrorist attack committed on US soil. Both towers of the World Trade Center collapsed, a side of the Pentagon was severely damaged, all three structures after being struck by individual passenger airliners. The passengers of United flight 93 became national heroes after fighting to ensure the flight would not find its target. In all, emergency responders included, 2,996 lost their lives in the attacks. Understandably, patriotism and fervor were at pinnacle levels across the nation.
When a vast majority of people are in agreement, laws are passed with relative ease. They are significantly more difficult to repeal, even once they are no longer relevant.
The AUMF authorized the United States president to commit military troops to action anywhere in the world that was suspected of being a haven for the groups involved in the 9/11 attacks. The language of the Act is vague, which has left the proverbial door wide open. Initially, Afghanistan was targeted as the homeground for the terror group al-Qaeda. The war in Afghanistan is now the longest-running war in American history. It could legally drive. The war’s public aims were to dismantle al-Qaeda and to deny it a safe base of operations in Afghanistan by removing the Taliban from power. Since 2001, the AUMF has been used to authorize military action in the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia.
The vagueness of the Act is both its strength and its most dangerous problem. It authorizes the President to act unilaterally to bring the might of the military into any country with the only justification necessary being that al-Qaeda or an “affiliated” group has a presence there. The Act has been used most recently in the fight against ISIS.
Authorization for Use of Military Force
The most obvious concern of the AUMF (the full text of which can be read here) is that it allows the President to conduct military action without Congressional approval, a requirement listed out in the US Constitution. Since its inception, the AUMF has been used as justification for nearly every military action taken by the United States, with two major exception. For the Iraq War, from 2003-2011, President George W. Bush did receive a specific AUMF constrained to that particular conflict. For military action in Libya beginning in 2011, President Obama waived his lack of authorization and instead used support from the United Nations to justify military action.
The current Administration under President Trump has used the AUMF as authorization for military action in Somalia, specifically against the terrorist group al-Shabaab. In its most recent use, the AUMF has been used to allow for military action against ISIS, a group which did not exist when the AUMF was signed into law.
Among other conflicts justified using the AUMF are 1) combat action against al-Qaeda and the Taliban in Afghanistan, 2) conducting secure detention operation in Guantanamo Bay, 3) Military operations in Iraq, 4) military training in the Philippines, Georgia, and Yemen, 5) deployment of forces to Djibouti, 6) deployment of aircraft carriers to Turkey, 7) military action in Syria.
On December 31, 2011, President Obama signed the 2012 National Defense Authorization Act (the full text of which can be read here). This most recent version of the Act codified provisions which allowed for indefinite military detention without charge or trial into law for the first time in American history. The NDAA has often been cited as a clarification of the AUMF.
Sections 1021 and 1022 are the key sections of the Act from a Constitutional standpoint regarding indefinite detention. Both sections are contained under Subtitle D – Counterterrorism.
Section 1021(a) states that, “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force…includes the authority for the Armed Forces of the United States to detained covered persons…pending disposition under the law of war.” 1021(b) then qualifies the term “covered persons” to mean any person involved in any way in the September 11 attacks, anyone who “…was a part of or substantially supported al-Qaeda, the Taliban, or associated forces…” 1021(c) includes, most troublingly, that under the Act a person may be detained “…under the law of war without trial until the end of the hostilities authorized by the” AUMF.
Section 1022(a) states that the President may “waive the requirement of paragraph (1)” if the President determines that the waiver is necessary for national security. 1022(b) does entail that there is no requirement to detain United States citizens in military custody. It does not say that a United States citizen is exempt from the military custody, only that military custody is not required.
The provision allowing for detention to last for the duration of the hostilities presents a problem of definition. The “hostilities” referred to by the Act is the War on Terror. The “War on Terror” is a term of art invented to refer to any and all military action against al-Qaeda, its successors, and its sympathizers. There is no clear definition, however. As noted in this article, the War on Terror is not well defined. Both the terms “war” and “terror” are vague insofar as who is fighting, where is the battlefield, when is the war complete, and other such definitions typically present in a conventional war. The Act allows the government detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”
The U.S. Constitution, in Article I Section 9 Clause 2, generally guarantees the “Privilege of the Writ of Habeas Corpus.” Translated literally, habeas corpus means “that you have the body.” The legal protection of habeas corpus first originated back in 1215, through the 39th clause of the Magna Carta signed by King John, which provided “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land.”
The writ of habeas corpus is a court order a prisoner can obtain requiring the jailer to come into court and justify his detention of the prisoner. In practice, it is a traditional way in which those who are detained by a court can demand a fair trial by jury.
By the language of the US Constitution, the guarantee of habeas corpus does not apply to Congress. However, the Constitution states explicitly that Congress may not suspend habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.” This distinction is important, as it shows that the default status of habeas corpus is “on.” The guarantee is passive rather than active, and therefore requires an active suspension by Congress to turn it off. Without such an action, the guarantee remains on for all persons under the purview of the government of the United States, citizens and non-citizens alike.
The 2012 NDAA creates a situation in which the Constitutional right of habeas corpus can be revoked. More importantly, the NDAA actively requires that a person prove innocence rather than having to be proven guilty, and strips away Constitutional protections against the government. Previously, Congress would be required to draft and pass a Bill of Suspension, which would be a serious, much-debated measure for which Congress would have to assume direct political accountability.
The NDAA states that members of all belligerent armed forces (both sides) are subject to military, not civilian, law. Ergo, by the law of war, the president (and the military officers under him) may incarcerate anyone deemed a “combatant” for the duration of the conflict. As stated earlier, no evidence is required for a person to be deemed a combatant.
Section (e) of the NDAA states “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. Because of this fact, the “protections” written into the NDAA are rather porous, and open to abuse through vague interpretations.
There are cases related to section (e) that are worth exploring. A post-Civil War case, Ex Parte Milligan, states that a citizen non-combatant incarcerated outside the theater of war is entitled to habeas corpus. However, this case does not have anything to do with those accused of being combatants. The 1942 Quirin decision held that President Roosevelt, and the office of the president in general, to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. One of the most commonly recognized cases is the 2004 Hamdi case. The court held that a U.S. citizen captured bearing arms in the war theater is not entitled to habeas corpus. Rather, such a person is only entitled only to a minimal military hearing without a jury and without many of the traditional due process protections. Finally, there is the 2008 Boumedienne decision, which stated that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.
Not one of the above-mentioned cases pertain to United States citizens, or legal aliens within the United States, apprehended within the U.S. and charged with being an enemy combatant.
Why It Matters
Obviously, it would be both irresponsible and incorrect to suggest that the US government will suddenly begin rounding up US citizens under the auspices of the NDAA. Clear and present abuses of the rights of a citizenry by a government are rarely a concern in the United States, though that is not to say such instances have never happened (see Order 9066 regarding the forced internment of Japanese Americans during World War II).
The greater concern is two-fold.
First, the provision of the NDAA are unnecessary. The Justice Department has charged, tried, and convicted approximately 200 defendants for charges related to international terrorism, and used the same federal courts that hold criminal trials every day. Such defendants have ranged from a co-conspirator in the 9/11 attacks to persons convicted for their roles in the 1993 World Trade Center bombing, and the bombing of U.S. embassies in Africa. Acting within the rule of law and applying federal criminal law, the Justice Department has been able to obtain convictions that resulted in long prison sentences for these convicts. In short, the system has been successful without the ability of the government to detain United States citizens indefinitely without charge.
Secondly, and more alarmingly, is the threat of the “slippery slope.” Throughout modern history, governments have committed indefensible attrocies from time to time. None of these, however, began overnight. The precursors to The Holocaust began years before Hitler was appointed into power in 1933. Dachau was opened later that year, followed by boycotts of Jewish-owned businesses. In 1935, race laws were implemented in Germany. It was not until 1938 that Kristallnacht was put into practice, followed by the first official killings of concentration camp inmates at Chelmno in occupied Poland in 1948. We see similar timelines in the Great Leap Forward in Maoist China, the starvation of the Ukraine in Soviet Russia, and in the Armenian Genocide, to name a few examples. Normalization is a slow process, and often goes relatively unnoticed. By the very nature of society, what is now is always just upstream of what might be, for better or for worse.
Acts such as the 2012 NDAA are too often swept under the proverbial rug, and so are not given the attention from the general public that has proven so necessary to limit the powers of whatever administration is in charge at the time. In a hypothetical in which a government is perfectly benevolent and therefore never a cause for concern could exist without abusing the provisions of the NDAA. However, the NDAA does not have an end date. Administrations do. If a perfect administration is impossible, two in a row is certainly more so, and so on.
Constraints placed on the government are not put into place in order to stop the government from being currently tyrannical, but to limit the power of a government to ever become tyrannical. The 2012 NDAA is entirely too vague to be able to effectively limit the power of the government to at some point abuse the provisions of the act.
A healthy concern is the only way to ensure that the natural rights of people are maintained.