Historical and legal precedent are quite clear on the topic of indefinite detention of citizens. British law, from which American law derives its basic principles, placed suspension of habeas corpus (tantamount to indefinite detention) into the hands of the legislative branch. This followed many decades of kings arbitrarily jailing their political opposition, or extortion victims.
The problematic example is the Civil War. At its beginning, Abraham Lincoln unilaterally and illegally suspended the writ of habeas corpus and was slapped down by Chief Justice Roger B. Taney for doing so. Confederate combatants, however, upon capture were held until war's end.
Additionally, at the request of the state of California and against his intelligence team of J. Edgar Hoover and William Donovan, President Franklin Roosevelt ordered the indefinite detention of Japanese-America citizens during World War II.
Obama admitted that he signed the bill with reservations, but faced severe criticism from the Left. Forbes magazine quoted Mother Jones and the ACLU in the following:
“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.”
Terrorism is a threat to American security, this is true. But not as threatening as the Japanese or the Confederacy. As the country moves into its second decade since 9/11, there is little justification for these provisions. In fact, they are legally void since they contradict the Constitution’s stance on habeas corpus.
If there is an emergency, Congress can come together quickly and suspend the writ if needed. For now, it needs to eliminate these troublesome phrases from federal law.