Fordham Law

Does law clarify rights of detention? Yes. No. Maybe.

Karen Greenberg in The Philadelphia Inquirer, March 06, 2012

Media Source

Go to a Ron Paul rally or an Occupy protest, and you are likely to hear a speech like this:

President Obama signed a law allowing the government to detain U.S. citizens suspected of terrorism indefinitely!

In other words, the government can lock you up at any time for as long as it likes, with no opportunity for you to be heard in court or confront witnesses and evidence against you, Bill of Rights be damned.

The 2012 National Defense Authorization Act (NDAA), sent civil rights experts into a tizzy. But did it really trump constitutional guarantees?

Yes. And no. And, well, maybe.

The NDAA has experts disagreeing even more than usual. It also seems to contradict itself, adding little clarity in an era of confusion about what is allowed in the fight against terrorism.

Geoffrey Stone, a law professor at the University of Chicago, is one of many scholars who say the law merely captures current uncertainty about rights of suspected terrorists, even U.S. citizens.

Others attack it as unconstitutional.

Law professor Jonathan Turley of George Washington University calls it "one of the greatest rollbacks of civil liberties in the history of our country."

In Congress, two California Democrats, U.S. Rep. John Garamendi and Sen. Dianne Feinstein, say the NDAA is so fuzzy that they have proposed legislation to clarify that American citizens cannot be detained indefinitely.

Think you can read the NDAA itself and find the answer?

After a long section that spells out the president's right to detain people suspected of terrorism "without trial until the end of hostilities," the law says this:

"Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens. . . . "

But even Obama felt compelled to clarify the law. He said this when he signed the NDAA:

"My administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a nation."

That is a promise, of course, that future presidents need not keep.

So, if the law changes nothing, why the outrage from civil libertarians and the note of presidential caution?

"By virtue of saying that there would not be detention of citizens under his presidency, he flagged the fact that it was a gray area," said Karen Greenberg, who runs the Center on National Security at Fordham University.

Though a decade has passed since the 9/11 attacks, the nation's courts have yet to offer clear guidance on "whether and when the government can lawfully detain American citizens outside the ordinary criminal justice process," Stone said.

Others, however, say the new law is perfectly clear.

"To suggest that that does not alter existing law is to engage in willful blindness," Turley said. "If that were the case, civil libertarians would not be in such a tizzy. What this law does is expressly allows indefinite detention by the government."

The language about not affecting current law, he argued, is merely cover for senators who passed the bill.

Then there is the fact that Obama's administration has already gone much farther than detaining citizens.

In October, the administration authorized killings of two U.S. citizens, Anwar al-Awlaki and Samir Khan, by a CIA drone in Yemen. Both had ties to terrorists.

Obama has not discussed the covert operation. The administration has, however, defended the idea that U.S. citizens who join al-Qaeda can be targeted for killing without judicial review.

Turley argues that if the federal government can order hits on U.S. citizens, it can surely detain them indefinitely - "The lesser would be included in the greater," he explained.

Obama said he signed the law primarily because it also provided key funding for soldiers, but Turley has a more cynical view. Democrats - especially in election years - hate being labeled doves.

"They did not want to be accused of being soft on national security," he said.

The confusion may stem in part from the conflict's nontraditional nature: Terrorist "soldiers" do not wear uniforms; they do not fight for a country that could negotiate an end to the war. As Greenberg puts it: "By stepping out of the categories that already existed, we ended up in a legal no-man's land."

She says Americans must start demanding answers to the tough questions this battle raises. For example, under what circumstances, if any, can a presidential administration assassinate U.S. citizens?

"We're moving into an era where we are managing terrorism rather than thinking about eradicating it," she said. "Does that mean everybody we capture in this war we are going to keep without due process? I can't see buying into that. There is no such thing as 100 percent security. I think Americans may still have to absorb that. You have to make a decision: What kind of country are you?"