The National Defense Authorization Act greatly expands the power and scope of the federal government to fight the War on Terror, including codifying into law the indefinite detention of terrorism suspects without trial. Under the new law the US military has the power to carry out domestic anti-terrorism operations on US soil.
“The fact that I support this bill as a whole does not mean I agree with everything in it,” the president said in a statement. “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”
Worse, the NDAA authorizes the military to detain even US citizens under the broad new anti-terrorism provisions provided in the bill, once again without trial.
There is some controversy on this point, in part because the law as written is entirely too vague. But whether or not the law will be used to indefinitely detain US citizens domestically, it is written to allow the detention of US citizens abroad as well as foreigners without trial.
“Obama’s signing statement seems to suggest he already believe he has the authority to indefinitely detain Americans—he just never intends to use it,” Adam Serwer writes at Mother Jones. “Left unsaid, perhaps deliberately, is the distinction that has dominated the debate over the defense bill: the difference between detaining an American captured domestically or abroad. This is why ACLU Director Anthony Romero released a statement shortly after Obama’s arguing the authority in the defense bill could “be used by this and future presidents to militarily detain people captured far from any battlefield.”
The NDAA Makes the Status Quo Worse
Glenn Greenwald makes a compelling case that the law gives the government truly frightening powers. He notes that section 1022 exempts US citizens from the requirement of military detention but still leaves the option open to the state.
“The only provision from which U.S. citizens are exempted here is the“requirement” of military detention,” Greenwald writes. “For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention
“The most important point on this issue is the same as underscored in the prior two points: the “compromise” reached by Congress includes language preserving the status quo,” he continues. “That’s because the Obama administration already argues that the original 2001 AUMF authorizes them to act against U.S. citizens (obviously, if they believe they have thepower to target U.S. citizens for assassination, then they believe they have the power to detain U.S. citizens as enemy combatants). The proof that this bill does not expressly exempt U.S. citizens or those captured on U.S. soil is that amendments offered by Sen. Feinstein providing expressly for those exemptions were rejected. The “compromise” was to preserve the status quo by including the provision that the bill is not intended to alter it with regard to American citizens, but that’s because proponents of broad detention powers are confident that the status quo already permits such detention.”
In part the National Defense Authorization Act helps to preserve the status quo established a decade ago with the original provisions in the PATRIOT Act giving the government broad new powers in the so-called War on Terror. In part the bill expands those powers, codifying the use of indefinite detention of foreign nationals and possibly US citizens arrested abroad and at home. In part the bill expands the use of the US military on domestic soil, at once complicating anti-terrorism strategies at home and raising serious questions about the role of the military in law enforcement.
All these things should make Americans – and not just Americans – very nervous about the preservation of their civil liberties. That precarious balance between security and liberty is looking ever more tilted toward the former and away from the latter.
The History of Anti-Terrorism is Bad News for Civil Liberties
Just as troubling, these laws suggest that the legal apparatus available to us is insufficient to the task. While due process may work for any other criminal act, terrorism is unique and requires new and expanded powers that ignore the Constitution. These powers are necessary until “hostilities end” – as though terror itself can ever be extinguished.
In the 1970′s the British government began passing a series of anti-terrorism laws that did many of the same things the US government has done since 9/11. At the time, detention without charge was expanded to seven days. Various other powers of arrest and detention were written into law, and these provisions were expanded gradually through the 1980′s as the British government continued to wage its war against the Irish Republican Army.
Far from wiping these laws from the books when the IRA disarmed, many of these laws were simply reinforced by the 2001 Anti-Terrorism, Crime and Security Act and the 2005 Prevention of Terrorism Act.
The problem with fighting a war on terror is that it’s in many ways a war on ideas. The IRA may have disbanded, but that didn’t stop terror from taking a new shape in the form of Al-Qaeda. Britain’s struggle against Irish dissidents may have been a good excuse for earlier anti-terror legislation, but Islamic radicalism is just as potent a threat.
You Can’t Wage a War on an Idea
In the United States the Cold War had barely ended before the threat of terrorism replaced it and, in some ways, became an even more urgent reason to expand government power at the expense of privacy and civil liberties. Unlike the Cold War, Americans have actually died in the War on Terror. Also unlike the Cold War, the enemy we face is not embodied in another country or people, but rather in a form.
Terrorism is a tactic, not a state. It is used to create overreaction in its targets. The initial reaction by the US government to the 9/11 attacks was understandable but wrong-headed. Over a decade after that national tragedy, the government is still overreacting. Each time we allow our fear to undermine our freedom we concede to the very terrorists we hope to defeat.
“The legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial,” said Sen. Bernie Sanders in a statement. “This bill also contains misguided provisions that in the name of fighting terrorism essentially authorize the indefinite imprisonment of American citizens without charges. While we must aggressively pursue international terrorists and all of those who would do us harm, we must do it in a way that protects the Constitution and the civil liberties which make us proud to be Americans.”
Time for a Civil Liberties Caucus
Support for the National Defense Authorization Act is decidedly bipartisan. Opponents like Senator Sanders (an independent who describes himself as a socialist) and Rand Paul (a Republican and a libertarian) also come from both sides of the aisle.
The same people tend to be opponents of other civil-liberty-quashing bills like the Stop Online Piracy Act and the Protect IP Act, two bills being debated in congress which would give the government and the industry sponsors of the bills broad new powers over the internet and freedom of speech online.
To me, this underscores the need to look beyond politics as usual.
Technology is changing the way institutions, governments, and individuals interact. The symmetry of power is shifting and governments and non-state actors alike are scrambling to keep up. Sometimes this creates real security threats.
Hacking outfits like Anonymous present a real challenge to governments and corporations. At times these groups may act honorably, attempting to expose corruption. At times they may act without such noble intentions. Either way there is no denying that security is an issue going forward and that the overreaction of governments to a myriad security risks poses its own set of problems and challenges.
I’ve written in the past that people concerned with civil liberties should begin to walk away from the old left-right dichotomy entirely and focus on electing civil libertarians to congress whether these are members of the left like Russ Feingold or of the right like Rand Paul. Of course, both Paul and Feingold will fall short of the ideal civil libertarian when it comes down to it, but both are a far cry better than 90% of their colleagues.
We have few options available to us at this point. The NDAA may be challenged in the courts, and this will almost certainly happen if the president (or a future president) actually makes use of the powers related to US citizens. Even then, however, the courts could come down on either side. The Supreme Court is not exactly filled to the brim with civil libertarians.
Until that time, however, we can try to abandon politics-as-usual and focus on electing politicians who care more about curtailing government excess than expanding government power endlessly in our never-ending War on Terror. And we can use technology, social media, and other tools at our disposal to act outside of politics altogether to work to create alternate institutions and communities.