A local boy tries to get a peek in the viewfinder of a journalist’s video camera as US Army soldiers with the 1-320 Field Artillery Regiment, 101st Airborne Division conduct a patrol in the village of Saidon Kalacheh in Arghandab Valley north of Kandahar. Reuters/Bob Strong
The important question of whether the military may hold US citizens and foreign nationals in indefinite detention came to a head recently in two important forums: a federal court in Manhattan and the House of Representatives. On May 16, US District Judge Katherine Forrest ruled unconstitutional an important section of the National Defense Authorization Act for fiscal year 2012, finding that it threatened US citizens with military detention for First Amendment–protected speech and associations. Two days later, taking up the NDAA for 2013, the House rejected a rare bipartisan proposal to bar the military detention of people apprehended on US soil. At the same time, it approved language that appeared to mandate that all foreign nationals who can be tried in a military commission must be tried there rather than in civilian criminal court.
These developments underscore the remarkable fact that more than ten years after the September 11 terrorist attacks, the scope of the government’s power to use military authority to lock up human beings indefinitely remains fundamentally unclear. Indeed, it was that very ambiguity that led Judge Forrest to rule an important part of the NDAA unconstitutional. There is undoubtedly a legitimate place for military detention in the context of an armed conflict, so long as it conforms to the laws of war. But it is deeply disturbing that a decade into the conflict with Al Qaeda, there remain serious doubts about the extent of that awesome authority. Still more troubling is the apparent fact that the government is unwilling to erase those doubts.
The federal lawsuit challenged Section 1021 of the NDAA, which authorizes the indefinite military detention of people who are “part of or substantially supported Al Qaeda, the Taliban, or associated forces.” Chris Hedges, Noam Chomsky, Daniel Ellsberg, and several other journalists and activists sued, claiming that the law was so overbroad and vague, they feared that their writings and associations might lead the government to lock them up in military detention.
At first glance, their fears may seem unfounded. In the decade since 9/11 the government has held only two US citizens in military detention in connection with the conflict with Al Qaeda, and both were alleged to have done much more than write an article or interview a terrorist. Yaser Hamdi was captured in 2001 on the battlefield in Afghanistan, carrying a weapon and accompanying a Taliban regiment. Jose Padilla, apprehended on arrival at O’Hare Airport in 2002, was said to be a member of Al Qaeda who had come here to commit a terrorist attack. Even Hedges’s and Chomsky’s harshest critics are unlikely to view them as being situated as Hamdi and Padilla are.
And Section 1021 itself expressly affirms that it does not “affect existing law or authorities relating to the detention of United States citizens,” language insisted on by Senator Dianne Feinstein when people began objecting to the NDAA’s potential application to American citizens. That language seems to state that the law has no effect on US citizens at all. And President Obama said in his NDAA signing statement that “my Administration will not authorize the indefinite military detention without trial of American citizens.” He has been true to his word.
Given that state of affairs, most observers expected the court to dismiss the complaints of Hedges et al. and throw out their case for lack of standing (to challenge a law, one must at a minimum show that there is a credible threat that it will be enforced against oneself). The administration’s lawyers argued just that. And they had several facts in their favor: no one in Hedges’s or Chomsky’s position had been placed in military detention; the law on its face said it did not expand detention authority over US citizens; and the president had said he would not use military detention against Americans.