NDAA 2013: Will Congress kill indefinite detention without trial for Americans?

Get short URL

Published time: November 28, 2012 18:20
Edited time: November 28, 2012 22:20

Americans might once again be guaranteed the right to trial: a clause in the most recent draft of next year’s defense spending bill ensures that United States citizens aren’t stripped of their right to habeas corpus.

Lawmakers have included provisions in the National Defense Authorization Act for Fiscal Year 2013 that relieves those worried with how last year’s bill allows for the indefinite detention of Americans without trial.

Under the 2012 NDAA, any person considered a substantial supporter of a group alleged to have committed hostilities against the US can be held in a military prison until essentially the end of time without ever being brought to court. In the latest draft of next year’s NDAA, Congress is reminded of the writ of habeas corpus and told any legal American resident must be awarded a fair trial.

“Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights,” reads Sec 1033 (a) of the proposed Pentagon spending bill.

Elsewhere, the NDAA draft orders that the president must inform Congress within two days of any American detained under the Authorization for Use of Military Force, a post-9/11 legislation that the Obama White House has used to defend their supposed right to keep indefinite detention on the books. A team of plaintiffs led by journalist Chris Hedges have sued US Pres. Barack Obama for implementing the 2012 NDAA and its indefinite detention provisions, but the fight has been stalled by an appellate ruling that removed an injunction from District Judge Katherine Forrest that blocked those sections.

“If the Obama administration simply appealed it, as we expected, it would have raised this red flag,” Hedges wrote on Reddit in September. “But since they were so aggressive it means that once Judge Forrest declared the law invalid, if they were using it, as we expect, they could be held in contempt of court. This was quite disturbing, for it means, I suspect, that US citizens, probably dual nationals, are being held in military detention facilities almost certainly overseas and maybe at home.”

By way of a fight spearheaded by Hedges and a massive grassroots campaign, efforts to remove the indefinite detention provision from US law now seems to stand a chance at being successful. That isn’t to say a fair and speedy trial will necessarily be without obstacles, though. The 2013 NDAA still needs to pass the Senate and be signed into law by the president, and there is ample time for anyone in Washington to strike the latest provision or add new ones ensuring indefinite detention remains a possibility. Last year, Pres. Obama’s top aides said the White House would not sign off on the NDAA until the indefinite detention clauses were removed. On New Year’s Eve, Pres. Obama authorized it regardless with little comment to the press aside from a signing statement acknowledging he had reservations about the very bill he just put on the books.

Sen. Carl Levin (D-Michigan), the chairman of the Senate Committee on Armed Services, has claimed that the indefinite detention provisions were insisted by the president himself.

Even if the latest copy stays intact, though, an US citizen held captive by his own country might not have it that easy. Sec 1033 (c) reads, “A person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force shall be allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody,” perhaps paving the way for a full month of mistreatment at the hands of Uncle Sam.