Debate continued to rage this week over a short, loosely worded segment of the new 565-page 2012 National Defense Authorization Act that critics, lawmakers and now a federal judge say makes permanent a controversial, post-9/11 loophole that opened a dangerous door to approving the indefinite detention of U.S. citizens without a trial.
The Obama administration and the law's supporters have maintained that the president's signing statement that secured the legislation's passage on New Year's Eve, as well as additional rules he issued in February, should be enough to assuage the fears of the law's opponents. Both documents suggest that U.S. citizens will have their constitutional right to a trial protected.
Civil liberties activists, however, are quick to argue that the statements lack the enforcement mechanisms to guarantee the administration will not use the vague language of the law's Section 1021 to indefinitely detain Americans. It also provides no guarantee that future administrations wouldn't willingly apply the statute more broadly.
U.S. District Judge Katherine Forrest agreed with these concerns earlier this month, finding Section 1021 unconstitutional in a lawsuit brought by a group of journalists and activists. The measure had a "chilling impact on first amendment rights," she wrote in her ruling, deconstructing arguments from the president's lawyers several times.
That didn't sway House lawmakers, however, who shortly thereafter voted against a bill to guarantee civilian trials for any terrorism suspect arrested in the United States.
While the the legal jargon of the case and the ambiguous wording of Section 1021 can be hard to wade through, Americans might be interested to learn what actions might lead to their detention according to the National Defense Authorization Act. Below are a few hypothetical examples, based both on the legislation, as well as the court case that found it unconstitutional:
Interview A Member Of The Taliban
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As a foreign correspondent on assignment in Afghanistan, you successfully contact Taliban representatives who take you to meet a mullah. After you've completed your interview and fact-finding mission, U.S. officials arrest you under suspicion of terrorism.
Section 1021 (2) of the National Defense Authorization Act grants power to indefinitely detain "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."
You're not sure if what you did was "substantial" or really "supported" anyone. It's quite possible that nobody does, as the text of the law doesn't define these words. This could take a while to sort out.
In the recent hearing on a lawsuit challenging that section of the act, Judge Katherine Forrest asked an Obama lawyer if plaintiff Chris Hedges could be assured that he would not be subjected to detention under Section 1021, journalist Naomi Wolf noted.
Hedges is a Pulitzer prize-winning reporter who has worked extensively in Afghanistan and the Middle East. The administration attorney suggested that the specifics of Hedge's situation would make his detention unlikely, but responded, "I cannot say that today."
While the Obama administration has said you're entitled to a trial as a U.S. citizen, this won't preclude you from a protracted journey through an encumbered court system charged with figuring out -- based on secret evidence -- why you were picked up. And if it this happens during a future administration, officials might not agree with Obama on your right to a trial.