For The Defense, February 2012 - DRI Today

to restrict all detentions by the executive
branch, nor merely those by the
Attorney General. Lawmakers, both
supporters and opponents of [the Act],
recognized that it would restrict the
President and military authorities.
See Detention of U.S. Citizens, Louis Fisher,
CRS Report For Congress, April 28, 2005.
Now, 40 years after the passage of the
Act, citizens and non- citizens alike face,
once again, the prospect of imprisonment
without due process or trial. The 112th
Congress has passed, and President Obama
has signed, the National Defense Authorization
Act for Fiscal Year 2012 (NDAA).
The detention provisions of three sections
of the NDAA, Sections 1031, 1032 and 1033,
have ignited a firestorm of criticism from
the left, the right, and the military.
Section 1031
Section 1031, entitled “Authority to Detain
Unprivileged Enemy Belligerents Captured
Pursuant to the Authorization for
Use of Military Force,” provides in general
that the “Armed Forces” are “authorized”
to “detain covered persons captured in
the course of hostilities authorized by the
Authorization for Use of Military Force”
as “unprivileged belligerents pending disposition
under the law of war.” Although
Section 1031 purports to address the detention
of so-called unprivileged enemy belligerents,
the NDAA does not define the
term. For that definition one must look to
in the Military Commission Act of 2009
(2009 MCA). There the term is defined as
an individual who (1) has engaged in hostilities
against the United States or its coalition
partners; or, (2) has purposefully and
materially supported hostilities against the
United States or its coalition partners.
”Covered Person”
A “covered person” under Section 1031 includes,
(1) persons who planned, authorized,
committed, or aided the terrorist
attacks that occurred on September 11,
2001, or harbored those responsible for
those attacks, or (2) 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. Subsection
1 is reminiscent of the authority Congress
extended to the President under the Authorization
for Use of Military Force Against
Terrorists Act (AUMFA) passed shortly after
the September 11 attacks. The AUMFA
authorized the President to use all necessary
and appropriate force against those
nations, organizations, or persons he determined
planned, authorized, committed,
or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such
organizations or persons. However, by including
in the definition of a “covered person”
under the NDAA those responsible for
the 911 attacks, persons who may have “harbored”
those responsible for the 911 attacks
and persons who were a part of Al-Qaeda,
without regard to time or scope, Congress
intends to extend unprecedented authority
to detain indefinitely to the U.S. Military.
Unlike under the 2009 MCA or the AUMFA,
under Section 1031 one could fall under suspicion
of harboring a person responsible for
the September 11 attacks without proof that
he or she was even aware of that person’s
connection to the event. A parent, sibling,
grandparent, or spouse could all be subject
to indefinite detention if, for example, they
allowed a relative suspected of having been
part of Al-Qaeda to reside in their home after
911, even if the other family members
were completely unaware of the suspect’s
activities and the suspect had abandoned
his affiliation with Al-Qaeda years before
the 911 attacks. Similarly, a person could
be detained indefinitely under Section 1031
based upon a fleeting affiliation with Al-
Qaeda that was terminated years, even decades,
before any attack against the United
States or its coalition partners.
Disposition Under Law of War
Disposition under law of war may include,
(1) long term detention under the law of
war without trial until the end of hostilities
against the nations, organizations, and persons
subject to the Authorization for Use of
Military Force, (2) military trial, (3) transfer
for trial to an alternative court or competent
tribunal having lawful jurisdiction
or (4) transfer to the custody or control of a
foreign country or foreign entity.
One obvious difficulty with this section
of the Act is that the only trigger for the
release of detainees is the “end of hostilities…”
against the United States and any
of its coalition partners. Since it is unlikely
that “hostilities” in the war on terror will
ever come to an end, detainees could face
the prospect of life in prison, perhaps in a
foreign land, never having been afforded
anything other than administrative review
(where habeas corpus does not apply) of
their classification as an unprivileged
Even an American
citizen may be subject
to the nefarious practice
of “extraordinary
rendition,” detention, and
military commissions.
enemy belligerent. Even where habeas corpus
proceedings are available to detainees,
the right to an adversarial proceeding can
be substantially delayed, the rules favor
admission of evidence to support detention
and the detainee has limited access to
evidence upon which detention is based.
Although few would quarrel with the
use of legislative tools designed to bring
the perpetrators of the 911 attack to justice,
Section 1031 extends well beyond that
noble purpose. It is clear from a reading of
Section 1031 that, if passed in its current
form, it would provide legislative authority
for the indefinite detention of any person
upon minimal proof of involvement
in terrorism, without charge or trial, until
the end of the war on terror. There are
no geographical limits as to the place of
detention and no express limitation on the
use of coercive methods to extract confessions.
United States citizens are protected
against such extreme measures as “extraordinary
rendition” only if the conduct took
place within the United States” except to
the extent permitted by the Constitution
of the United States.” Thus, even an American
citizen may be subject to the nefarious
practice of “extraordinary rendition,”
detention, and military commissions. The
result—little more than suspicion of terror-
For The Defense ■ February 2012 ■ 59