The National Defense Authorization Act (NDAA) that was recently adopted by Congress, and signed into law by Barack Obama, contains language that has raised substantial Constitutional questions by civil libertarians on both the political right and on the political left. The bulk of the lengthy legislation deals with the routine authorization for military spending by the Pentagon, including items such as military pay, veterans’ benefits, weapons procurement, etc.  Such legislation must be passed on a regular basis if the United States military is to continue to operate.

However, in the U. S. Senate version of the legislation, S.1867, there are sections dealing with the detaining of people suspected of being involved with terrorist organizations or any groups engaging in, or planning, hostile actions against the United States. These suspects can be arrested by American military forces and detained indefinitely, without formal charges being filed, and without trial, until the “hostilities” end. The term hostilities refers to the general war on terror, not to specific military actions, such as those in Afghanistan or Iraq. Therefore, there is no end in sight to the possible period of detention. This is the version that was ultimately passed by the full Congress.
The question is, does the law allow members of the United States armed forces to detain American citizens, including those arrested in the United States, without granting them due process? The language in the bill is unclear, at best. In section 1031, the first paragraph states:
“(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.”
The legislation then provides a definition of the individuals covered by the legislation:
“(b) COVERED PERSONS.—A covered person under this section is any person as follows: 
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(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.”
The legislation goes on to provide various options for dealing with the individuals arrested pursuant to the authority provided to the President. It states:
“(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following: 
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.”
The next section of the law is 1032, and it requires the military to detain certain individuals that fall under the definition of the act. Critics point out that the language is so broad that American citizens can fall under the provisions of the act, and can be detained indefinitely, without the Constitutional protections provided to them under the 5th and 6th Amendments to the U. S. Constitution. In other words, there would be no due process, no right to a speedy trial, no right of habeas corpus, and no right to a trial by jury. 
However, supporters of the law, including some members of Congress, point to additional language in the same section of the law that they say protects the Constitutional rights of U.S. citizens. The specific provisions state: 
(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”
The problem is that when the language is carefully read, it becomes clear that this does not exempt U.S. citizens from being detained without due process, but only says that it is not required under the previously cited provisions. The decision of whether an American citizen can be detained indefinitely, without being formally charged, or tried, is, therefore, left in the hands of one person, the President of the United States.
Giving the President of the United States, or anyone else, this kind of authority over American citizens was something that the framers of the U. S. Constitution, and, specifically, the Bill of Rights, were trying to prohibit.   Yet it appears that this law is doing what the founders of our country feared. One of the problems is that it has been done before. U.S. citizens of Japanese descent were interred by the U.S. government after the Japanese attack on Pearl Harbor. The detention was the result of Executive Orders issued by then President Franklin D. Roosevelt. 
There were numerous challenges in the courts to the detention orders, and several cases reached the U.S. Supreme Court, including Yasui v. United States, 320 U.S. 115 (1943), Hirabayashi v. United States, 320 U.S. 81 (1943), Ex parte Endo, or Ex parte Mitsuye Endo, 323 U.S. 283 (1944), and  Korematsu v. United States, 323 U.S. 214 (1944). In all of these decisions, the court upheld the right of the government to place curfews on Japanese Americans, to exclude them from certain areas, and to place them in internment camps. These decisions were later considered a mistake, and, in the 1980’s, when evidence was uncovered that the government had been aware that there was no real threat, but withheld that information from the courts, the decisions were overturned. 
The latest case involving the detention of U.S. citizens by the military is Hamdi v Rumsfield 542 U.S. 547 (2004). Yaser Isam Hamdi was born in the United States, and, then, his family moved to Saudi Arabia. He was captured in Afghanistan during the U.S. invasion in 2001 and held in Guantanamo Bay, Cuba, as an enemy combatant. He challenged this status in court, and, in a plurality decision, the Supreme Court Justices ruled that U.S. citizens, even when arrested in foreign countries, and designated as enemy combatants, must be provided with an opportunity to have the legality of their detention decided in a civilian court.  
This case would appear to settle this issue, but Congress has used language in NDAA that appears to be an attempt to circumvent this ruling. In addition, Congress has conferred the power to order long term detentions of U.S. citizens on an occupant of the White House that has repeatedly expressed his willingness to ignore the Congress, the courts, and even the U. S. Constitution itself. This establishes a dangerous situation for Americans. 
The new law also appears to repeal, or at least modify, the Posse Comitatus Act, that was passed in 1878 at the end of post Civil War reconstruction. That law is designated as 18 USC 1385, and it prohibits the states of the union, and local governments, from using members of the U.S. Army for law enforcement purposes. It was later amended to include the Air Force, and the Marines, and the Navy are under the same prohibitions, by order of the U. S. Department of Defense. If the critics of NDAA are correct, and members of the United States military can make arrests of U.S. citizens in the United States, then it appears that the intent of the Posse Comitatus law is negated.
In conclusion, the language in the bill appears to be deliberately vague and confusing, and many members of Congress seem to be unaware of what they were actually voting for. However, that does not lessen the impact of a law that gives the President extraordinary powers to violate the Constitutional rights of American citizens. If Congress can’t be convinced to amend the law to remove those provisions, then the courts must be asked to declare the provisions unconstitutional. 
Michael Connelly,
Constitutional Lawyer
Executive Director of the United States Justice Foundation. (
Personal website and blog: Michael Connelly blog
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