NDAA Indefinite Detention Upheld by Appeals Court

By: Wesley Long

On Wednesday of last week, in a case before the United States Court of Appeals, the controversial section 1021 of the NDAA bill for FY2012 was upheld.  In their ruling, the court stated that the U.S. citizens suing the government “lack standing to seek preenforcement review of Section 1021 and vacate the permanent injunction.”   Translated from the legal jargon, they essentially articulated that the NDAA provision in question did not specifically refer to U.S. citizens, but rather to any “persons”, therefore, their argument goes, no Constitutional infringements could have occurred.

Section 1021 of the National Defense Authorization Act of 2012 purports to legitimize:

“Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”  Of: “A person 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.”

The language “purports to legitimize” was utilized because when put into conflict, the 5th and 6th Amendments to the U.S. Constitution, the supreme law of the land, should trump a mere defense appropriations bill.

This verdict overturned a previous decision by a U.S. District Judge in 2012, who commented: "An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,"

Upon initial examination, the provision may not seem particularly concerning; the U.S. military has not, historically, granted due process protections to enemy combatants captured on the field of battle.  To comprehend the full harm of this section, the context of other bills must also be considered.  For example, the Authorization for the Use of Military Force (AUMF 2001), while theoretically justified, as authorizing limited retaliatory action upon training camps in Afghanistan directly responsible for the 9/11 attacks, has since been stretched to imply that the President can use military force anywhere in the world (including at in the United States), as long as they label any who oppose “terrorists.”  Additionally, both the NDAA and AUMF are terrifyingly vague regarding any timeline or criteria under which an “end of hostilities” might occur.

The court’s recent ruling seems to be rooted in an assumption that “persons” and U.S. citizens are mutually exclusive designations.  This argument, however, has already been rendered indefensible by the actions of the executive branch.  The assassinations of Anwar al-Awlaki and his 16 year old son, both U.S. citizens, are notable examples.  Yet the administration has admitted to executing other U.S. citizens without trial, even one conducted in absentia.

Many in congress have remained silent, and it seems that the court system is not willing to confront this blatant, deliberate, overstep of power.  We in the liberty movement must therefore redouble our efforts against this abominable piece of statecraft.

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