Indefinite Detention, Endless Worldwide War and the 2012 National Defense Authorization Act
On December 31, 2011, President Obama signed the National Defense Authorization Act (NDAA), codifying indefinite military detention without charge or trial into law for the first time in American history. The NDAA’s dangerous detention provisions would authorize the president — and all future presidents — to order the military to pick up and indefinitely imprison people captured anywhere in the world, far from any battlefield.
The breadth of the NDAA’s worldwide detention authority violates the Constitution and international law because it is not limited to people captured in an actual armed conflict, as required by the laws of war. Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen captured on U.S. soil in military custody, and many in Congress assert that the NDAA should be used in the same way. The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States. Any president’s claim of domestic military detention authority under the NDAA would be unconstitutional and illegal. Nevertheless, there is substantial public debate around whether the NDAA could be read even to repeal the Posse Comitatus Act and authorize indefinite military detention without charge or trial within the United States.
Although President Obama issued a signing statement saying he had “serious reservations” about the NDAA’s detention provisions, the statement only applies to how his administration would use them, and would not affect how the law is interpreted by subsequent administrations. The provisions – which were negotiated by a small group of members of Congress, in secret, and without proper congressional review – are inconsistent with fundamental American values.
Both Congress and the president need to clean up the mess they have created. No one should live in fear of this or any future president misusing the NDAA’s detention authority. The NDAA’s detention provisions must be repealed.
There’s an important role for concerned citizens and local lawmakers to play. The ACLU is advancing model state and local legislation for communities that want to ensure their state and local law enforcement agents, National Guard members, and government employees are never used to assist any U.S. military detention without charge or trial of individuals in the United States. The bill is an opportunity for communities across the country to urge Congress to repeal the indefinite detention provisions of the NDAA.