|A cluster of provisions in the NDAA aims to keep the prison facilities at Guantánamo open indefinitely [EPA]|
New York, NY – In an instructive coincidence, the passage of the National Defence Authorisation Act (NDAA) by the US Congress came on December 15, 2011, the same day as the official start of US forces’ pullout from Iraq. One front in the US’ post-9/11 conflicts closed overseas, as another front seemingly opened at home. Now awaiting President Barack Obama’s signature, which will turn it into law, the NDAA would further entrench here at home some of the defining features of the United States’ extraterritorial campaign against political violence by non-state actors, continuing the onward march of the so-called “war on terror” through the American homeland.
For years, my students, my colleagues and I have been dealing with the realities of indefinite military imprisonment without trial, and of trial before untested and unfair military commissions. But we deal with those issues in the context of our work on behalf of our many non-citizen clients imprisoned outside of the US, at Guantánamo Bay, Cuba, and at Bagram Air Force Base, Afghanistan.
Together, the NDAA’s provisions keep Guantánamo open as a facility, while expanding within the US a set of practices and legal approaches that stem from the Guantánamo experiment. Of course, the Guantanamisation of the American justice-and carceral-system was already well underway. Since 9/11, lengthy and oppressive pre-trial detention conditions have become the norm in federal terrorism cases, along with draconian sentence enhancements meted out to convicts in such cases, and subsequent imprisonment under cruel Special Administrative Measures and in majority-Muslim Communications Management Units. But this legislation represents further, significant strides in that direction, and, notably, ones that are overtly military in character.
To be clear, the NDAA does not institute martial law for all in the US. But it would be foolish not to see that it lays a potential foundation for it in the future. Students of history, and those of us new Americans who have lived under military or militarised regimes – and that includes many Muslim Americans – will spot the kinship and recognise in this law some of the markers of authoritarian rule.
“… the NDAA does not institute martial law for all in the US. But it would be foolish not to see that it lays a potential foundation for it in the future.“
The legislation is plagued by textbook examples of poor and dangerously ambiguous drafting. Messy legislative writing is risky because some unfortunate soul(s) will potentially have to languish in military prison for years while American courts sort out the matter. Nonetheless, in light of the confusion and fears that this legislation has elicited, particularly in American Muslim communities, I thought it worth attempting a clarification of the proposed law’s contours, of what it adds to the landscape as opposed to that which it merely recycles, realising as well that, in so doing, some of the widespread concerns surrounding it would be bolstered, while others might be debunked.
Keeping Guantánamo open
A cluster of provisions in the NDAA aims to keep the prison facilities at Guantánamo open indefinitely (sections 1023, 1026, 1027, and 1028, among others). This is but the latest iteration of a sustained and joint effort by Congressional Republicans and Democrats alike to normalise the existence of Guantánamo as a prison site and to make it difficult, if not impossible, for any president to shut it down.
These sections of the NDAA extend for another year the prohibition on the use of US Department of Defence funds towards the construction or refurbishing of facilities to house Guantánamo prisoners within the US, or for the transfer or release into the US of Guantánamo prisoners. The provisions also renew certification requirements making it virtually impossible to release anyone from the island prison without a federal court order.
Although the law would carve out a waiver to the certification requirements for the first time, counting on a US politician to exercise that option might be naïve given the climate and overheated rhetoric surrounding all things Guantanámo. An irony among many is that there were no such certification hurdles to drop human beings into the endless Guantánamo ordeal in the first place. These provisions poignantly underscore how the entire Guantánamo system is an absurd one-way ratchet.
Codifying the law of Guantánamo
While the NDAA provisions discussed above mostly recycle and modify extant law, other sections break new ground, expanding the Guantánamo paradigm within the US.
The first provision, section 1021, purports merely to reaffirm the status quo under the 2001 Authorisation for Use of Military Force. However, by codifying for the first time the interpretation given that law by two successive administrations and the federal courts, Congress has effectively reinforced the status quo, perhaps placing it beyond the reach of pending lawsuits challenging the prevailing interpretations.
Prior to the NDAA, federal statutes did not explicitly provide for indefinite military imprisonment without trial, and they did not extend such authority to cover anyone who provided “substantial support” (undefined in the law) to al-Qaeda, the Taliban, or “associated forces” (also left undefined). The courts may have held as much in the last decade, mostly in the context of Guantánamo litigation, but this would be the first statutory expression of such authority, and its reach remains at best unclear owing to the NDAA’s characteristically deficient drafting.
The law’s architects included language stating that it did not “limit or expand the authority of the President”. But that is meagre consolation given this administration’s expansive view of its own authority under the AUMF. After all, Obama believes he can lawfully order the extrajudicial execution of US citizens overseas, and even underage US citizensmight be deemed legitimate targets. Military imprisonment pales in comparison.
“Obama believes he can lawfully order the extrajudicial execution of US citizens overseas, and even underage US citizens might be deemed legitimate targets.“
Moreover, it is unclear whether the detention authority this section spells out applies to US citizens, as long as they are not “captured or arrested in the United States”. That remains an unsettled question under the cases in this country, and this provision could be enlisted in that ongoing legal battle.
The next provision, section 1022, is frightening in far less subtle fashion. It mandates military custody without trial, or with a trial before the untested and fundamentally flawed military commissions, for anyone who (1) is a part of al-Qaeda or of an associated force that acts in coordination with or under the direction of al-Qaeda, and (2) participated in planning or carrying out an attack or attempted attack “against the United States or its coalition partners”.
Military custody without trial
While the NDAA states that it does not require military custody of US citizens who are alleged to fit its description, the law could still be read to allow military custody of those citizens. In other words, the US government may not be obligated to throw its citizens in a military brig under this law, but it might still enjoy that option.
The NDAA also exempts from military custody “resident aliens” – or Green Card holders – if they are arrested “on the basis of conduct taking place within the United States”. The upshot here is that military custody is mandatory under this law for all non-citizens who do not hold Green Cards, whether they are arrested within or outside of the US, as long as the US government alleges that they fit the law’s criteria.
It is equally mandatory for Green Card holders, captured in or outside the US, if the government alleges that some of the culpable conduct took place outside of the US. Leaving aside momentarily its possible impact on citizens and focusing exclusively on how it affects non-citizens, it is worth noting that dozens of cases that were brought against non-citizens in the civilian system after 9/11, including, prominently, Umar Farouk Abdulmutallab, would have been routed to the military under this provision.
Proponents of the provision, on the left and rightof American politics, emphasise that it allows the President to waive these new military custody requirements on a case-by-case basis. One problem they overlook, of course, is that the provision makes military imprisonment without trial the norm in certain cases. Obama would have to defend any waiver as a deviation from that norm, and pay the price for it politically. As the Obama presidency illustrates all too poignantly thus far, that would not be a likely choice. Moreover, even assuming the current president somehow developed the fortitude he has lacked so far to take principled positions on these issues, what guarantees that subsequent White House occupants would follow course? Would a President Newt Gingrich refrain from relying on these provisions? Would President Hillary Clinton?
“While the NDAA states that it does not require military custody of US citizens who are alleged to fit its description, the law could still be read to allow military custody of those citizens.“
At this juncture, it would border on the revisionist not to remind readers that indefinite detention of non-citizens in the US on mere suspicion of ties to terrorism is not unprecedented. Section 412 of the USA PATRIOT Act, hurriedly passed by Congress in the immediate wake of the attacks in 2001, unambiguously vests the Attorney General with that authority (which has not yet been employed). But under that scheme, a civilian official has to affirmatively exercise civilian discretion to place a non-citizen suspected of terrorism ties in indefinite-but still civilian-custody. Under the NDAA, the automatic default would be military imprisonment, and the civilian authorities would have to intervene with a waiver to interrupt that mechanism.
No one wants the NDAA
Even from the utilitarian perspective so oddly popular with liberties advocates these days, the fallout is potentially dramatic. Foreign allies, for example, will hesitate to extradite suspects to the US because of the possibility they will face indefinite military custody without trial or trial before the untested and flawed military commissions. The new law would also constrain US officials in their efforts. Under section 1029, for instance, the US Attorney General cannot bring a federal prosecution against certain categories of defendants without consulting first with the heads of the military and intelligence apparatus. Almost cavalierly, the NDAA contributes to the subversion of civilian supremacy over the military, a longstanding hallmark of American political history and tradition, and a vital structural feature of any open and democratic society.
Some may wonder how legislation like the NDAA remains acceptable, how it is even still possible a full decade after 9/11. The question is particularly perplexing seeing as no one in the vast American security and intelligence apparatus asked for or wanted the NDAA. In fact, the NDAA counter-terrorism provisions were opposed outright by the president’s chief counter-terrorism adviser, the Secretary of Defence, the Director of National Intelligence, the Director of the Federal Bureau of Investigations, the Director of the Central Intelligence Agency and a host of other military and security officials.
It seems that no one wants the NDAA, except the politicians who have staked their careers on a war the public might think has ended with the death of Osama bin Laden. At a time when the US economy teeters on the brink of collapse, those elected officials want to ensure they can continue to score cheap political points by stoking the fires of fear, paranoia and prejudice.
Further enabling such legislation, on a deeper level, is its tacit subtext. What is understood by many, but left mostly unspoken, is that these laws would apply only to the most unpopular and reviled minority in post-9/11 America: Muslims. Acknowledging the danger looming ahead, a large coalition of Muslim American groups wrote a letter last week to the White House, urging a presidential veto of the legislation. Alas, it now appears inevitable that Obama will sign the NDAA into law, perhaps with a signing statement, an official interpretation of the law that would only bind his administration, rather than take political risks in an election cycle by vetoing the law altogether.
In the infamous Korematsu case, where the US Supreme Court approved the internment of Japanese Americans during World War II, Justice Robert Jackson dissented, warning about the decision’s potentially long-lasting reverberations in terms that ring equally true in our context today. Regardless of how long they are left unused, or how selectively they are applied at first, laws such as section 412 of the USA PATRIOT Act, and now the NDAA provisions, “[lie] about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need”. While it may well be inescapable that the brunt of the NDAA will be borne initially by Muslims in the US, make no mistake: the threat in the long run is to the very nature of American government and to all who are subject to its authority.
Ramzi Kassem is Associate Professor of Law at the City University of New York. He supervises the Creating Law Enforcement Accountability & Responsibility (CLEAR) project, which works to address the unmet legal needs of Muslim, Arab, South Asian, and other communities in New York City that are particularly affected by national security and counterterrorism policies and practices.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.