On New Year’s Day, President Obama signed into law this year’s National Defense Authorization Act. Among its usual mundane provisions there was a section that may be the first codification of the policy of indefinite detention. In the past 10 years there has been much debate over the proper method by which to detain those suspected of terrorism, particularly those connected to organizations like al Qaeda and the Taliban, but now it seems that the law has been written on the side of those in favor of treating this suspects as prisoners of war and holding them “for the duration.”
But what makes the NDAA stand out is the vague wording and breadth of its coverage, which some say includes the entire globes. There are those (including the ACLU, which I regularly trust in these types of heavily legal matters) that claim that the provisions allow for the detention of US citizens, but as I cannot independent confirm this claim (the provisions I found included a explicit exemption for US citizens) I will not be addressing that issue.
Instead, I want to look at the broader context. On its face, the provisions regarding indefinite detention seem rather mild. Considering that this part of the law is aimed at the organizations the United States is fighting, one should expect such allowances in a warzone. Indeed, I would not want combatants caught in the battlefield to be released freely. What the contention is, however, is the desire for a reason behind the detention.
Given the nature of modern conflict, it is often difficult to tell who your enemy is and who is merely a civilian (this, of course, is ignoring the grey areas that have existed in all historical conflicts). Some have used this reality as a means to avoid the responsibility when detaining individuals, refusing to explain why a certain person is in detention in the name of “national security.” Much less cynically, I have heard from several individual soldiers that often they are forced to release obvious enemy combatants due to strict military methodologies (implying, I assume, support for the contentious measures in the NDAA). The problem with the above arguments is the repeated detentions of individuals who turn out not to any connection to organizations like al Qaeda at all (links). Such occurrences demonstrate a failure in our ability to determine friend from foe. As such, what is required is a more careful examination of our rules of detention, not the wide brush painted by the NDAA provisions. Indeed, in this light the provisions of the NDAA seem haphazard, something one does not want while in combat.
But, to me, the provisions in the NDAA stand out the most when placed beside some of what I consider the most egregious civil rights issues of our day, namely, the Patriot Act, the assassination of a US citizen without trial, the targeting of Muslim communities by the FBI for no other reason than their religion, and the apparent ability of the president to wage war at will (Libya, Iraq, Afghanistan, Vietnam, etc.). Therefore, the NDAA is added to an ever growing list of policies and laws that seem to stem from the ever present fear of terrorism rather than a level-headed, realistic vision of the world and the condition of our civil rights and, indeed, the rights of all individuals.
It has been 10 years, but somehow, in some ways, it feels just like yesterday.