By Johnny Davis, J.D.

It may seem like decades ago, since a global pandemic struck and all news of the targeted killing of General Qasem Soleiman disappeared. However, the killing highlights one of the most dangerous laws in American history, a statute never once mentioned in the presidential race, but one that allows for the legal targeted detention and killing of Americans, all without a charges or a trial. It’s time to talk about Section 1021 of the NDAA again.

Since 9-11, the United States has carried out dramatic national security and foreign policy decisions without a strategic reevaluation and absent a robust policy debate over the effectiveness and the legality of the measures taken to prosecute the war on terror. 

      Candidate Obama denounced the various “imperial powers” claims of the Bush administration.   He even specifically attacked Bush’s claim to have the authority to appoint military tribunals based on Presidential authority only.  However, President Obama quickly embraced and even expanded upon the Imperial Presidential power claims of the Bush administration including its position on military tribunals. 

      The most dangerous claims were those ratified by Congress in Sections 1021 and 1022 of the 2012 National Defense Authorization Act (NDAA). Sections 1021 and 1022 of the 2012 NDAA authorize the President to determine a national emergency/hostilities and to establish military tribunals, even within the United States, and subject American citizens in the United States to military tribunals which are not required to guarantee basic constitutional protections.

     Section 1021 condones the use of military tribunals on Presidential authority alone in violation of the constitutional requirement of congressional approval for military tribunals.  Military tribunals, just like military courts established under the Uniform Code of Military Justice, are Article 1 courts established by Congressional authority.  The President has no inherent authority to establish any court or tribunal.   Thus, Sections 1021 and 1022 of the 2012 National Defense Authorization Act (NDAA) represent a unlawful delegation of legislative and judicial power to the executive branch in violation of the separation of powers and the constitutional limits on presidential authority.

     The Bush administration asserted after the 9-11 attacks that the President as Commander-in-Chief has the authority to appoint military tribunals without basic constitutional protections based on his own inherent authority and that Congressional approval was not needed.  Faced with legal challenges the Bush administration argued that the Authorization for Use of Military Force (AUMF) of 2001 and the President’s plenary authority empowered the President to create tribunals.

     Bush also argued that Congress had granted the authority. In Hamdi v. Rumsfeld, Justice O’Connor, writing for the majority, addressed both claims, and while SCOTUS did not rule on the “plenary” authority, it did agree that Congress had granted such authority, and did so via the 2001 AUMF. The claimed “plenary” authority by the Commander-in-Chief has not been addressed by the Supreme Court.

       Section 1021 authorizes the President to “detain covered persons” any person who aided terrorist groups against the United States.  However, the section does not establish any due process requirements so it in effect means that any person the President claims has aided terrorist organization in any manner can be detained without trial under the jurisdiction of a military tribunal.   The person detained can be held pending “Disposition under the law of War” which gives the impression that the rule of law is being upheld.  However, the reality is far different.

        Section 1021 does not have any time or geographic limitations.   The provision allows Presidents to detain persons of any nationality no matter how far they are captured from any conflict or battlefield.  The basic laws of war codified by the Geneva Conventions only allow indefinite detention to prisoners of war.   A person captured far from a conflict who is not taking part in hostilities does not qualify as a prisoner of war under international law.   Any person detained due to criminal behavior must be afforded due process protections and prosecuted in the criminal justice system.  

       The provisions of sections 1021 and 1022 also violate the due process rights of American citizens and the 4th, 5th and 6th Amendments.  Basic rights to habeas corpus, trial by jury, right to defense counsel are denied.  Further, Section 1021 permits the detention to last until the end of the national emergency/hostilities.  Such a limitation is meaningless as a President simply can declare a continued state of hostilities to continue the detention.

       Article 1 Section 9 Clause 2 of the Constitution mandates “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  The Writ of Habeas Corpus ensures that American citizens have the right to challenge the authority to detain.  The Supreme Court ruled in Ex parte Milligan (1866), habeas corpus can only be suspended in a time of war by Congress and military tribunals cannot have jurisdiction over citizens in states where civilian courts are still operating.   The lack of Habeas Corpus strips a citizen of the ability to invoke their basic Constitutional rights.

      Thus, military tribunals must be created with authorization of Congress and can only have jurisdiction over American citizens captured overseas unless warfare disrupts civilian courts in taking place within the United States.  The lack of habeas corpus protection means that those detained under 1021 are not ensured access even to the courts created under the Military Commissions Act.   The Declaration of Independence cites King George III violations of the rule of law, enacted laws on his authority, violating due process protections as some of the primary reasons for the Declaration.  The focus of the Founding Fathers was on protecting the liberties of the American people, especially against abusive executive authority.      

     Section 1021 states the persons are held “pending disposition under the law of war.”  The law of war recognizes that prisoners of war and only prisoners can be detained until the end of a conflict.   Otherwise, those who commit crimes, including prisoners of war, must receive proper due process under prosecution for those crimes.  The structure of section 1021 does not comply with the requirements of the law of war.  Therefore, section 1021 violates international law as embodied in the Geneva Conventions and Additional Protocols 1 and II in addition to the Constitution.

     The President does not have the right to violate international law recognized by the United States.  The President is sworn to uphold the Constitution and the laws of the United States. 

Therefore, the President must uphold treaty obligations ratified by the United States Senate. 

Section 1021 violations of international law and treaty obligations of the United States are an additional reason why the section is unconstitutional.

      The United States systematically violating international law damages the image and the trust of the United States abroad.  The image and trust of America is vital as it serves the foundation for why and how America conducts its foreign affairs.   Thus, America’s enemies can paint America as operating in a sinister manner that impeaches America’s stated goals.  America’s allies lose trust and confidence in America’s ability to accomplish its goals.  In the modern era, messaging is more important than ever in foreign policy and national security.  Thus, the section serves to undermine the security of the United States by damaging its image and standing in the world.  

      Section 1021 authorizes the disposition to include detention “without trial until the end of hostilities.”   Section 1021 is facially unconstitutional as it denies the right to trial and habeas corpus for persons who are not prisoners of war.  The military tribunal would be created by and its members appointed by the President.   Therefore, the potential for abuse would be extremely high and far-reaching.

      Section 1021 does not grant the authority but rather recognizes the imperial presidential claims of the Bush and Obama administrations.   Thus, the section is embracing the idea that the President can create military tribunals on presidential authority alone.  Constitutional limits of Presidential power are entirely ignored.   Congress abdicated its duty to defend its authority and the Constitution.

     The debate surrounding section 1021 confirms its danger.  The Obama administration opposed the passage of section 1021 because the administration claimed the inherent authority to create military tribunals and to order detentions.   The final language of section 1021 adopts the Obama administration position.  The language is not enabling language giving authority to the President.

      Section 1021 uses what is called “report language” and is not commonly rendered into the statutory language of the United States Federal Code.  Section 1021 “affirms.”   This language versus words like “will” or “shall” is advisory and serves as Congress stating its views on the current state of the law.  Therefore, Congress embraced the claims of the Obama administration.

      Originally the NDAA of 2012 also included an additional section which stated that American citizens could be subjected to indefinite detention without trial.  The Obama administration strongly objected.  Senator Levin introduced an amendment repealing section 1021 stating that he was doing so on behalf of the administration.

       Section 1022 requires that all persons detained under 1021 are to be held by the United States military.  American citizens are only excluded from this “requirement.”  This does not nullify section 1021’s language that an American citizen can be detained without trial. It also does not exclude non-military agencies such as the Central Intelligence Agency from detaining American citizens.

     The prospect of non-military agencies detaining American citizens only increases the danger to the Republic.  The United States military has a long history of respecting the rule of law and has well developed due process protections for those held subject to the UCMJ.   The FBI and CIA have long histories marked by abuses of power and violating the constitutional rights of American citizens. 

     Defenders of section 1021 claim that it does not truly permit indefinite detention since detention would terminate at the end of the armed conflict.  However, the President would get to decide when the armed conflict ends since the conflicts are fought without the constitutionally mandated Declaration of War.   Therefore, the real answer is that there is no legal limit on the time of detention.   Such indefinite detention violates due process requirements.

    Indefinite detention likely violates the Eighth Amendment’s ban on cruel and unusual punishment.  Indefinite detention is a real punishment and to do so without limit and due process protections is a cruel and unusual punishment.  Those detained could be abused without public knowledge and with those abused unable to assert their legal rights.  Therefore, any mistreatment while confined could not be addressed through legal challenges.

      Torture is implicitly allowed under 1021(c):

“(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”   The Authorization for Use of Military Force (AUMF) and the President’s plenary authority as Commander in Chief were the legal authorities relied upon by the Bush Administration to deliver enhanced interrogations and torture to prisoners in Guantanamo Bay.   The 2012 NDAA, Section 1021(c) authorizes detention under those same authorities.  Thus, torture would be permitted and there are no safeguards in place to prevent torture. 

       The USA in 1994 ratified the Convention Against Torture which banned any use of torture regardless of the legal status of the person subject to torture.  18 U.S. Code § 2340A makes torture a crime and applies to any American national regardless of the location of the act of torture or to any person who commits torture within the jurisdiction of the United States.  Thus, it is remarkable and disturbing that Section 1021 opens the door to torture and demonstrates how the section inherently goes against the rule of law.

      The issue of abuse is not just theoretical.  The CIA systematically has used torture in the war on terror in violation of United States law, the Constitution, treaty obligations, and international legal norms.   No one in the CIA has ever been held to account for these crimes.  

    Sections 1021 and 1022 dramatically raise the stakes for the Republic.  Now American citizens could be detained unlawfully and without limit.  There is nothing in Section 1021 to prevent a President from establishing military tribunals and detaining American citizens and concealing it from the American public.  The danger is especially great since the government has been exposed as having systematically lied to the American public about the course of the war of terror. 

         The Bush, Obama, and Trump administrations have each lied about the conduct of military operations in Afghanistan.  Those lies have been about the relative success of the operations along with understating civilian causalities in the war.  Further, the administrations have been dishonest in their general attempts to downplay the reality of the war in Afghanistan being a war.  Such a mindset dominating the government makes Section 1021 an even more pressing danger.

     Sections 1021 and 1022 should be repealed in their entirety.   Congress should pass a statute requiring that all government agencies respect the full Constitutional rights of all Americans along with all treaty obligations and international law as recognized by the United States.   The long-term solution goes deeper. 

       Congress should stop allowing President to use to the 2001 Authorization to Use Military Forces as authority to use force almost at any time or anyplace a President wants to use force.   The AUMF of 2001 was meant to authorize force in Afghanistan.

Congress should repeal the AUMF of 2001.

       Further, Congress should uphold the constitutional requirement that Presidents to seek and get a Declaration of War before entering conflicts and the War Powers Act should be amended to only allow a President to use military in immediate national defense, pursuant to a treaty obligation, or after a Declaration of War has been passed by the Congress.   Declarations of War would set a clear goal and define the end of a conflict.   Declarations of War would clarify the legal authorities and the nature of who the real enemy of the USA is in the conflict.   Today, the President decides who is and is not the enemy.   

      Sections 1021 and 1022 are dangerous and unconstitutional.  They are potential tools for doing great harm to the Republic.  However, they do not operate in isolation.  They represent part of a larger trend of Presidents seeking and getting power in violation of the Constitution and the failure of Congress to uphold the Constitution.   The nation needs to return to truly upholding the Constitution. 

      One would be hard-pressed to find a more concise refutation of the practice of applying the laws of war to persons in the U.S., or to U.S. citizens abroad, than those found in Ex Parte Milligan 71 US 2 (1866) in which the Supreme Court ruled the following:

Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.

-Ex Parte Milligan, 71 US 2 (1866)

      For Congress to attempt to invest such power for which it has no authority to delegate was clearly defined by Chief Justice Marshall in Cohens v. Virginia as “treason to the Constitution.” While the ruling was in reference to the judiciary, it applies to all three branches, and in fact, to any person bound by oath under Article VI of the Constitution.

Marshall stated clearly in Cohens:

“We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.”

      The foreign and national security policies of the United States are long overdue for a strategic reevaluation to ensure the policies are truly serving the national interest and are operating lawfully.  An honest and open public debate needs to begin which draws upon a diversity of views to reestablish sound foreign and national security policies for the nation.   The policies must respect the limitations of Presidential power and respect the Constitutional authorities of Congress.  The government must keep good faith with the American people.  It’s hard to repair that faith when they maintain the power to detain us indefinitely without charges or a trial.