Section 1021 of that law permits the indefinite military detention of American citizens on a mere suspicion of a connection, however remote or unintended, with a terrorist group. It was the death blow to a Constitution that was already on life support.
On January 13, 2012, concerned writers and activists, including journalist Christopher Hedges, activist Daniel Ellsberg, writer Noam Chomsky, and peace activist and member of Iceland's Parliament Brigitta Jonsdottir filed suit to enjoin enforcement of this provision of the Act. Through their lawyers, they claimed that Section 1021 violated rights of Free Speech found in the First Amendment, and Due Process found in the Fifth Amendment. They won. At least for now. (It is probable that the government will appeal to the U.S. Circuit Court of Appeals (2nd Circuit).
On May 16th, 2012, United States District Court Justice Katherine B. Forrester rendered an opinion that restores hope that our Courts will actually defend the Constitution. Justice Forrester found Section 1021 to be unconstitutional and therefore unenforceable, on both grounds raised by the plaintiffs.
Shortly after September 11, 2001, Congress passed the Authorization of Use of Military Force, (AUMF) giving the President nearly unlimited authority to use military force against the perpetrators of the New York terrorist attacks or anyone aiding them. It states:
"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
President Bush and President Obama have both used this legislation to justify military actions in multiple countries. Section 1021 of the NDAA begins by reaffirming this authority. It goes on to bring this authority for use of military action to American soil and against American citizens.
The section states that the President has the authority to detain "covered persons pending disposition under the law of war". A "covered person" is defined as "any person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Further, the disposition of such person may include the following: "detention under the law of war without trial until the end of hostilities authorized by the AUMF (and) ". transfer to the custody or control of the person's country of origin, or any other foreign country or any other foreign entity".
Proponents of the law point to two additional subsections which they claim protect American citizens. Section (d) states that "nothing in this section is intended to limit or expand the authority of the President or the scope of the AUMF". Section (e) states that "nothing in this section shall be construed to affect existing law or authorities relating to the detention of American citizens". Advocates argue that these sections ensure that section 1021 adds no new powers to the executive, and that American citizens retain the protections of the Constitution and the Bill of Rights. Indeed, President Obama, upon signing the Act into law stated:
"Section 1021 affirms the executive branch's authority to detain persons covered by the AUMF. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then" Moreover I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens " My Administration will interpret section 1021 in a manner that insures that any detention authorized complies with the law".
The President's assurances, however, are no assurances at all. During Senate debates on the section, Carl Levin made clear that his subcommittee included the offending language at the request of the White House. Under this administration, and that of former President George W. Bush, American citizens have been detained; in addition, the filing of charges and the scheduling of trials have been delayed beyond any reasonable time period. The President has even ordered the murder of an American citizen. So when the President claims that the NDAA "breaks no new ground" he is quite right. He and his predecessor have already been exercising extraordinary extra-constitutional powers against American citizens for some time.
Proof? What proof?
Criminal laws and cases provide that the government cannot intrude on a citizen's person or privacy without "proof" of wrongdoing. The stronger the proof, the greater the intrusion permitted. When the government can prove the crime "beyond a reasonable doubt", it can impose punishment, sometimes severe. To merely arrest, however, the government needs only "probable cause" to believe that an individual has committed a crime. "Probable cause" was the most easily met level of proof and was clearly established in the Fourth Amendment to the United States Constitution.
The NDAA references no specific level of proof that the government must meet before "detaining" a citizen. The AUMF, reaffirmed in the first paragraph of Section 1021, merely states that the President can act against individuals "he determines" were involved in the terrorist attacks. But this does not establish a minimum level of proof. "He determines" can mean anything. In fact, it can mean no level of proof whatsoever - just the whim, fantasy or caprice of a President or his designee.
However, in Section 1021 Congress uses the word "detain". That may give us a bit of hope that some level of proof is required.
The U.S. Supreme Court in the 1968 case of Terry v. Ohio legitimized law enforcement intrusion on citizens' persons and privacy on something less than "probable cause". The Court recognized a new phenomenon called the "stop and frisk". This new principle of law permitted law enforcement officers to temporarily detain citizens when there was a "reasonable suspicion" that the citizen was engaged in criminal activity. An important distinction was drawn between a "detention" and an "arrest. A "detention" was temporary in nature, and permitted law enforcement officers to investigate suspicious activity. An "arrest", by comparison, was the taking into custody of an individual with the intent to charge him with a crime.
The facts of the case made the holding sound reasonable. Officer McFadden, a foot patrol officer observed three men behaving as if they were casing a local store. They would take turns walking to the center of the block to peer into the window of a particular store, then return to confer with the other two. The men were dressed in a manner which could easily conceal weapons. After observing this for several minutes, Officer McFadden approached the men and asked them questions to which they responded unintelligibly. The officer then managed to force the three men into a nearby store and patted them down, finding guns on two of them. Terry and his compatriot were subsequently charged with weapons offenses.
The government's argument that the officer had "probable cause" to arrest was rejected. The High Court instead carved out whole new law enforcement powers that permitted officers to act on less than probable cause. The United States Supreme Court held that officers could "temporarily stop, detain and question" citizens when officers have a "reasonable suspicion" that criminal activity is afoot". The Court reasoned that officers should have the authority to act to prevent crime, as well as to solve it once it occurs. Police officers were permitted to detain citizens for about an hour to gather further information. If at the end of that hour, probable cause had not been established, the officers were obligated to release the citizen. This seemed a sensible response given the fact that Officer McFadden had observed behavior sufficient to give rise to a reasonable suspicion that a crime of violence was about to occur. Judge Douglas, however, was not so sure. In his dissenting opinion, he warned that the granting of this power to law enforcement officers to detain an individual "whenever they do not like the cut of his jib, if they can "seize' and "search' him in their discretion, we enter a new regime. " He called the decision a "long step down the totalitarian path".
The Terry decision was rendered in a case involving suspicion of an imminent crime of violence. But since then, the High Court has expanded the doctrine to allow the "temporary detention" of luggage, packages, mail and vehicles. In addition, the High Court has allowed such detentions based upon mere hearsay, rather than on the direct observations of the officer as had been the case in Terry. Further, the Court has permitted detentions for suspicion of previously committed crimes. The rule is no longer a suspicion that criminal activity IS afoot, but that criminal activity WAS afoot. In addition, police may now perform detentions on mere suspicion of even minor, non-violent offenses.
The right of law enforcement officers to "frisk" a detainee was a separate issue from the right to "detain". The right to "frisk" was limited in Terry to those instances where the officer had a "reasonable suspicion" that the detainee may be armed and dangerous. The Court permitted police officers to conduct the frisk for weapons only for the purpose of keeping the officer safe. But in 1993, the Court adopted the "plain feel" doctrine, permitting officers conducting such a frisk the right to seize items other than weapons. The frisk designed to ensure officer safety had now been expanded to a patdown for contraband and other items. So the U. S. Supreme court, through Terry and its progeny, had already severely diluted historic Fourth Amendment protections. (We see this effect quite graphically with the alarming increase in "stops"performed by the New York City Police Department.)
What constitutes behavior that would give rise to a "reasonable suspicion" of criminal activity is always an interesting debate. United States v. Sokolow was a 1989 Supreme Court case dealing with drug courier profiling. In his dissenting opinion, Justice Thurgood Marshallconcluded that drug courier profiles had a "chameleon-like way of adapting to any particular set of observations." He cited the facts asserted by the government in various cases which allegedly could give rise to a "reasonable suspicion", thereby justifying the detention of a citizen: suspect was first to deplane, suspect was last to deplane, suspect deplaned from the middle, the suspect purchased one-way tickets, the suspect purchased round-trip tickets, the suspect took a non-stop flight, the suspect changed planes, the suspect had no luggage, the suspect was carrying a gym bag, the suspect had new suitcases, the suspect was traveling alone, the suspect was traveling with a companion, the suspect acted nervously, the suspect acted too calmly. The bottom line is that it so easy for an officer to come up with a "reasonable suspicion" that it is really no level of proof at all. (Other organizations have identified an even lengthier list of "suspicious" characteristics that could be attributed to virtually everyone.)
So even if we assume that Section 1021 permits the military to detain American citizens only on "suspicion" of a connection to terrorism, there is no solace. Congress has essentially enacted a law that permits the military to detain citizens for any reason whatsoever, no matter how whimsical or contrived.
Did the government throw the case?
The plaintiffs' arguments in the recent challenge to the law centered on First Amendment Free Speech issues and Fifth Amendment Due Process issues. They successfully argued that section 1021 had a "chilling effect" on free speech, (and freedom of the press) as journalists, correspondents, writers and reporters could not carry on their trade of reporting facts to the public if the information might have come from some "person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." In many circumstances, journalists do not and cannot know whether a source might fit this broad definition.
The plaintiffs also prevailed on their Fifth Amendment Due Process argument. Generally, for Congress to enact a law, the wording of that law must give sufficient notice as to what is forbidden. That is, a plain reading of the text of the law must provide the average citizen with clear guidance as to what he may or may not do. When a law is unclear it is "void for vagueness" and is a violation of the "fundamental fairness" promised by the Fifth Amendment Due Process Clause.
Congress sometimes uses broadly defined terms in legislation for the very purpose of giving the executive branch the greatest latitude possible. But when they do so, they run the risk that the law will be void ab initio (invalid from its inception) because it is too unclear. The problems with Section 1021 are obvious. What does the term "associated forces" mean? Do dissident groups in other countries which share Al Qaeda's animosity towards the United States qualify? Do domestic or international
peace groups advocating for negotiations rather than military action qualify? What does "substantially supported" mean? Does contribution to an international charity whose funds find their way to feed and clothe the children of a "terrorist" make one a "covered person" now subject to detention? Does giving voice to grievances of oppressed groups that resort to violence qualify as "substantial support"? What does "directly supported", as opposed to "substantially supported" mean? And what is a "belligerent act"? Is it a "belligerent act" to demonstrate for peace or to join Occupy Wall Street in their myriad protests?
The dialogue recounted in Judge Forrester's opinion would be laughable if the issues were not so serious. With regard to the meaning of the term "substantially support", Judge Forrester asked:
"Give me an example. Tell me what it means to substantially support associated forces.
Government: I'm not in a position to give specific examples.
Court: Give me one.
Government: I'm not in a position to give one specific example.
The Court then asked: What does "directly supported' mean?
Government: We have not said anything about that in our brief.
Court: What do you think it means?
Government: . . . Your Honor, we had focused so much on the phrase that was challenged by the plaintiffs, "substantial support' that I have not thought through exactly and we have not come to a position on what "direct support' and what that means.
The Court then asked: "Assume you were just an American citizen and you're reading the statute and you wanted to make sure you do not run afoul of it because you are a diligent U.S. citizen wanting to stay on the right side of -1021, and you read the phrase "directly supported'. What does that mean to you?"
Government: Again it has to be taken in the context of armed conflict informed by the laws of war.
Court: That's fine. Tell me what that means?
The Government then returned to the Laws of War and finally stated, "I cannot offer a specific example. I don't have a specific example."
Later Judge Forrester addressed the specific activities in which the plaintiffs had engaged and wished to continue to engage as part of their livelihoods, including gathering information from sources. The question of the meaning of "associated forces" was central.
"Court: These people have real things they are saying. These are not speculative or hypotheticals. These are people who have actually written articles that we have here. [The Court then held up the articles written by O'Brien and marked as Court Ex. 3.] We are trying to figure out, are these articles going to subject Ms. O'Brien to risk under - 1021? . . . .
Government: Again, I'm not authorized to make specific representations regarding specific people. I'm saying that "associated forces' cannot extend to groups that are not armed groups at all.
Court: So we don't know about the articles, it depends?
Government: Maybe they are an armed group.
With respect to Jonsdottir the Court asked:
I'm asking you as a representative of the United States Government here today, can Ms. Jonsdottir travel to the United States without any concern that she will be captured by her current activities under - 1021?
Government: Again, I can't make representations on specifics. I don't know what she has been up to. I don't know what is going on there.
With regard to Hedges the Court asked, Is it possible, in your view, that Mr. Hedges, any of his activities as he has described them, should they occur in the future, [and also as to his past activities], can you say that he would not be subject to military detention without trial under - 1021?
Government: I'm not prepared to address that question here today, but I would answer that by saying that his concerns that he has raised are addressed by what I have said and he has the burden of showing that his fear as articulated is a reasonable fear. "
The feeble response by the government attorney to Judge Forrester's questions was conclusive proof to the Court that the Act was so poorly worded, so vague, so subject to broad interpretation and misinterpretation that it could not possibly provide citizens with adequate notice as to "what is forbidden". The government attorney's admitted inability to define the essential terms of the section went far to make the plaintiffs' case.
The NDAA's further assault on the Bill of Rights
But the NDAA has even greater implications than those argued before Judge Forrester. Let's say that Mr. Hedges writes an article about terrorism and one of his sources is fellow named Muhammad Alibar, a member of dissident group in Afghanistan. Because Mr. Hedges gave voice to Mr. Alibar's viewpoint in the article, he is subsequently detained by the military under Section 1021 of the NDAA on suspicion of providing "support for an individual who has supported hostilities in aid of enemy forces". This is by no means far-fetched. The U.S. Supreme Court has already held that civil rights organizations cannot give advice to groups labeled as "terrorists", even when that advice is intended to convince them not to be terrorists. Indeed, during oral argument, it was implied by the Justices that it would run afoul of federal law to teach a member of such a group how to play the harmonica.
There's no more room at Fort Leavenworth, so Mr. Hedges is transferred to the American-run prison at Baghram in Afghanistan - or perhaps to the now famous Abu Ghraib prison, currently under control of the Iraqi administration. Section 1021 permits the transfer of detainees ". "to the custody or control of the person's country of origin, or any other foreign country or any other foreign entity". There's no guarantee under the NDAA that American detainees will be held on American soil.
The Fourth Amendment protects individuals from "unreasonable searches and seizures". The Terry case relied on the "reasonableness" requirement of this Amendment to permit temporary detentions. But under the tenets of that case, the detention was to be about an hour. The High Court has substantially relaxed or even ignored this directive at our borders. But inside our borders, law enforcement officers are supposed to follow Terry and its progeny. The NDAA by contrast envisions detention "pending disposition under the law of war". By any reasonable interpretation, this means an indefinite detention, something repugnant in any democratic society. (It is a reminder of former Attorney General John Ashcroft's "hold until clear" policy under which he authorized federal law enforcement officers to seize and detain "indefinitely" hundreds of "suspects" in the immediate aftermath of September 11. None of them were ever charged with a crime connected to terrorism. ) For this aspect of the NDAA to stand, the government will have to successfully argue that it is "reasonable" under current Fourth Amendment jurisprudence to indefinitely detain a suspect who is an American citizen. If that is the case, the Fourth Amendment is nothing more than a "form of words".
Furthermore, to Mr. Hedges and his fellow detainees, the myriad protections found in the Sixthand Eighth Amendments will be meaningless. The Sixth Amendment provides the following rights: public trial, speedy trial, impartial jury, right to notice of the charges, right to confront witnesses, and the right to counsel. But Mr. Hedges won't be assigned an attorney, nor will he be permitted to call one. He will not be taken before a judge to be told why he is being held. In fact, no charges will be filed. He will not have the right to a speedy trial as promised in the Sixth Amendment because that right is not triggered until charges are filed. So he will not have the accompanying rights to a public trial (or any trial), to an impartial jury, to confront witnesses, nor a right to argue his innocence before a neutral judge or jury.
The Eighth Amendment prohibits excessive bails and fines, and cruel and unusual punishment. Mr. Hedges will not be provided bail (the amount of money which would secure his release pending trial). And because he will be held incommunicado, without charge and without access to counsel (and probably in solitary confinement a la Bradley Manning) he will be subjected to cruel and unusual punishment (Justice Scalia's sophistry regarding this clausenotwithstanding.)
The NDAA is, in essence, a nearly complete suspension of the Bill of Rights.
The NDAA as a de facto suspension of the right to habeas corpus
Because the act does not place a limit on the length of the "detention", it conceivably can be forever. But that's not supposed to happen in America. Probably the most essential right in any free society is the right of habeas corpus. Our forefathers considered it important enough to include in Article I section 9 of the Constitution. This right is the right not to be "disappeared" by the government. It is the right to be told why you are being held, and to contest those reasons before a neutral judge. The Constitution provides clearly that Congress may only "suspend" (this indicates a temporary limitation on the right, not an extinction of the right) the right when there is a public invasion or rebellion sufficient to endanger public safety. Section 1021 of the NDAA amounts to an unconstitutional suspension of the right of habeas corpus for American citizens. There is no provision for someone "detained" under this section to be provided any hearing before a neutral tribunal, nor to be told why he is being held, nor to defend himself against wrongful, mistaken or manufactured "suspicion".
Suspension of the right of habeas corpus is as serious as it gets. It's been done before.President Lincoln did so during the Civil War and was later chastised by the U.S. Supreme Courtfor acting beyond his constitutional authority. Congress suspended the writ for detainees held at Guantanamo in 2006. The U.S. Supreme Court struck down that provision and held that prisoners held there did indeed have that basic right. Given that decision, it is quite audacious of Congress to now enact a law that effectively denies this right to American citizens detained on American soil.
Transition from democracy to military rule?
The terrorist attacks of September 11, 2011 changed America. In the immediate aftermath, we had an outpouring of sympathy from the world, a rare moment of unity in the face of unspeakable horror. The sad truth is that those attacks were preventable . Upon taking office, President Bush relegated counter-terrorism to nominal status, and ignored the many warnings of an impending attack that had top counter-terrorism officials' "hair on fire." In typical neoconservative hubris, President Bush deflected criticism of his leadership by standing on the rubble pile of the Twin Towers, and declaring war on the world. He became what he had wanted to be: "a war President". They "hate us for our freedoms" he claimed.
So Congress, in a series of breathtaking acts of cowardice, began shredding the Constitution and its promise of "freedoms". (It seems their logic is if we no longer have those freedoms, the terrorists won't hate us anymore.) Congress immediately passed the AUMF giving the President broad powers to take military action at his discretion. Within weeks Congress passed the misnamed "Patriot Act" (U niting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism) giving federal law enforcement agencies powers to circumvent Constitutional protections wholesale. The NDAA of 2012 is just one of the most recent in a series of federal laws designed to ensure that Americans will no longer have those pesky "freedoms" for which we are so hated. In doing so, our President and legislators seem to have forgotten or abandoned their Oath of Office:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
In 2003, now retired General Tommy Franks expressed his fear that America was transitioning away from democracy. In his view, all it will take is another terrorist attack, and our Constitution will be "discarded" in favor of a military form of government. Apparently he was wrong. Congress has given the military powers unheard of in a functioning democracy. And we didn't need another terrorist attack for them to do it.