Last week in New York, U.S. District Judge Katherine Forrest took a stand against a contentious provision inserted into the current National Defense Authorization Act (PDF). She ruled (PDF) that it was unconstitutional for lawmakers to demand that, in future, those accused of involvement with terrorism — including U.S. citizens and residents — be subjected to mandatory military custody and held indefinitely without charge or trial.
Section 1021 is the provision designed to allow detention without trial until the end of the hostilities in the “war on terror.” It is meant to apply to anyone “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or anyone “who was a 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.”
Of particular concern to the plaintiffs in the case — led by the journalist Chris Hedges, and including Noam Chomsky, Daniel Ellsberg, the Icelandic parliamentarian and WikiLeaks activist Birgitta Jónsdóttir, Kai Wargalla of Occupy London, and the U.S. journalists and activists Jennifer Bolen and Alexa O’Brien — was the inclusion of the provision targeting anyone who “has directly supported … hostilities in aid of such enemy forces,” because they perceived that it could apply to speech, or the written word, endangering journalists and activists, for example, and would contravene rights guaranteed by the First Amendment.
Hedges noted that Judge Forrest “categorically rejected the government’s claims that the plaintiffs did not have the standing to bring the case to trial because none of us had been indefinitely detained, that lack of imminent enforcement against us meant there was no need for an injunction and that the NDAA simply codified what had previously been set down in the 2001 Authorization to Use Military Force.”
The reference to the AUMF is important, because it is the existing law that endorses the military detention of accused terror suspects. Passed by Congress the week after the 9/11 attacks, it authorizes the president “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.”
As I explained in an article last September,
This open-ended document is the bedrock of the occupation of Afghanistan, which began on October 6, 2001, and of the detention of prisoners in Guantánamo, as the Supreme Court confirmed in June 2004, in Hamdi v. Rumsfeld, when the Supreme Court confirmed that the AUMF also authorizes the detention [until the end of hostilities] of those held as a result of the president’s activities.
Noticeably, however, as Hedges and his fellow plaintiffs successfully argued, the AUMF does not include “associated forces,” in addition to al-Qaeda and the Taliban, or those who have “directly supported … hostilities.” As a result, they had reason to fear that the terminology used was far too vague to guarantee the safety of anyone regarded as a threat by the government, for whatever reason. Judge Forrest agreed, describing Section 1021’s “chilling impact on First Amendment rights.”
Hedges surmised that what swung the decision in the plaintiffs’ favor was the government lawyers’ refusal to guarantee that Section 1021 would not be used against the plaintiffs. As he described it,
The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole. And this, I think, decided the case.
“At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest noted. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”
However, while this ruling is good news for Americans — and it is to be hoped that the government does not appeal — lawmakers continue to be entranced by the power involved in passing legislation that can consign individuals to indefinite detention without charge or trial. As the 2013 version of the NDAA passes through Congress, lawmakers on Friday (just two days after Judge Forrest’s ruling) defeated an amendment, tabled by Rep. Adam Smith (D-Wash.) and Rep. Justin Amash (R-Mich.), that, as Human Rights Firstexplained, would have “ban[ned] indefinite military detention and military commission trials in the United States, making clear that individuals apprehended on U.S. soil who are suspected of terror-related activities can only be tried in a civilian court with all the corresponding constitutional protections.”
Interesting enough, the amendment would also have overturned Section 1022 of the NDAA, which, as Human Rights First also explained, “requires that a category of foreign terrorism suspects be initially held in military custody, absent a presidential waiver.” Human Rights First added that, although Barack Obama “issued a Presidential Policy Directive limiting the instances in which mandatory military custody applies, future Presidents are not bound by this directive.”
The battle, then, is far from over. As it proceeds I can hope only that more American commentators focus not just on Section 1021 of the NDAA, but also on Section 1022, and, in particular, on the enduring menace posed by the Authorization for Use of Military Force. To put it bluntly, the lawmakers were able to dream up the military-detention provisions included in the NDAA in the first place only because of the continued existence of the AUMF.
Far from being a historical footnote, the AUMF is actively used to justify the detention of prisoners at Guantánamo, where 169 foreign prisoners continue to be held on essentially the same basis that campaigners against the NDAA have been protesting about so vociferously. Americans, it should be noted, are not necessarily immune to the AUMF: three Americans were imprisoned without charge or trial on the U.S. mainland — where they were tortured — under the Bush administration.
Those men were the U.S. citizens Jose Padilla and Yaser Hamdi, and the legal U.S. resident Ali al-Marri, who were held incommunicado for several years on U.S. soil. When challenged, however, George W. Bush refused to defend his decision to hold them without charge or trial as “enemy combatants.”
Hamdi, initially held in Guantánamo, was swiftly moved to a military brig on the U.S. mainland (in April 2002) when it was established that he was a U.S. citizen who had moved to Saudi Arabia as a child. He was repatriated in September 2004 on the condition that he renounce his citizenship after his case, Hamdi v. Rumsfeld, along with another Guantánamo case, Rasul v. Bush, established that the writ of habeas corpus extended to the Guantánamo prisoners.
Padilla, seized as he flew into the United States from Pakistan in May 2002, was mentally destroyed by his isolation and torture as an “enemy combatant” over a three-year period. He was moved into the federal court system in November 2005 and was tried and convicted on vague “material support” charges in August 2007. He was given a 17-year sentence in January 2008.
Al-Marri, seized in November 2002 and held as an “enemy combatant” for more than five years from June 2003 (and subjected to extreme isolation and torture for the first 18 months), was inherited as an “enemy combatant” by Obama, who swiftly moved him into the federal court system in February 2009. There al-Marri accepted a plea deal on terrorism-related charges two months later and was given an eight-year sentence in October 2009.
To be honest, there is no sign that any U.S. government would want to revisit Bush’s experiments, even with the support of the NDAA, but it is, of course, a possibility. Judge Forrest is to be commended for putting Americans’ rights ahead of the dark desires of manipulative lawmakers.
It is, above all, however, a disgrace that foreigners are being ignored by those campaigning against the indefinite military detention of U.S. terror suspects — or those seized in the United States — because the principles of detention are the same whether you are an American or not. Until the “war on terror,” there were only two ways for the federal government to deprive someone of his liberty — either he was a criminal suspect who would be tried, promptly, in federal court; or he was a prisoner of war, to be held humanely for the duration of hostilities and was protected under Common Article 3 of the Geneva Conventions from “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture,” and from “outrages upon personal dignity, in particular humiliating and degrading treatment.”
(A third category, to be fair, is a country’s own military personnel, who can be court-martialed, but that is not an issue at the forefront in the discussions about the NDAA or the “war on terror.”)
As a result of the double standards outlined above, military detention will remain an option for lawmakers until significant pressure is exerted to close Guantánamo and to repeal the AUMF. The problem is not indefinite military detention without charge or trial for Americans, but indefinite military detention without charge or trial for anyone. It must be outlawed for what it is — an invitation to tyranny, whether applied to foreigners or turned on one’s own people.