Cutting Through The Controversy About Indefinite Detention And The NDAA
by Cora Currier, ProPublica.
On Tuesday, the Senate passed the National Defense Authorization Act, or NDAA, a yearly military spending bill.
Last year, the bill affirmed the U.S.’s authority to hold suspected terrorists indefinitely and without charges. The provision had generated plenty of controversy, particularly about whether U.S. citizens could be detained indefinitely. This year, the Senate bill says that citizens can’t be detained in the U.S. — but concerns remain about the scope of detention powers.
We’ve taken a step back, run through the controversy, and laid out what’s new.
What does the law currently say about military detention?
Section 1021 of last year’s National Defense Authorization Act affirms the military’s ability under the law of war to detain people “without trial until the end of hostilities.”
It also says they can be tried at a military commission, transferred to another country or to “an alternative court” — leaving open the possibility of civilian trials.
Who can be detained?
Anyone who “planned, authorized, committed, or aided” the 9/11 attacks, or “harbored those responsible.” Also, anyone who has been “part of or substantially supported” al Qaeda, the Taliban, “or associated forces that are engaged in hostilities against the U.S. and its coalition partners.”
Does that include U.S. citizens?
Congress left that deliberately unspecified last year, essentially punting the issue to the courts.
The language in the bill didn’t outright permit or prohibit indefinite detention of U.S. citizens. The act stated that it wouldn’t 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.”
But existing laws and authorities don’t actually give a definitive answer. There were cases involving U.S. citizens held by the military under President George W. Bush, but no precedents were established. The Supreme Court ruled only narrowly on the case of Yaser Hamdi, on the basis that he was captured on the battlefield in Afghanistan. (Hamdi was released and went to Saudi Arabia in 2004.) In a second case, Jose Padilla was transferred to a civilian court. (For more legal details, see these backgrounders from the blog Lawfare and the Congressional Research Service.)
In signing the bill last year, Obama said that his administration “will not authorize the indefinite military detention without trial of American citizens.” Critics were quick to point out that this was a non-binding policy, and that the law left the door open for future administrations to interpret it differently.
But this year’s bill fixed all this confusion, right?
In a replay of last year’s debate, a flurry of proposed amendments went around the Senate in an attempt to clarify the language about indefinite detention. Ultimately, the Senate passed an amendment from Senator Dianne Feinstein (D-CA) that seems to protect U.S. citizens:
“An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.”