At first glance it looked like the 2013 version National Defense Authorization Act (NDAA) did more to protect Americans against indefinite detention. We and several other news organizations reported as much yesterday.
But on closer examination the new NDAA actually makes it EASIER to detain citizens indefinitely.
Here’s the added clause in question:
“Nothing in the AUMF or the 2012 NDAA shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained pursuant to the AUMF and who is otherwise entitled to the availability of such writ or such rights.”
Yesterday we focused on the line “nothing … shall be construed to deny … any constitutional Rights …”
But today we offer another interpretation from Bruce Afran, a lawyer for the group of journalists and activists suing the government over the 2012 NDAA.
Afran explained that the new provision gives U.S. citizens a right to go to civilian (i.e. Article III) court based on “any [applicable] constitutional rights,” but since there are are no rules in place to exercise this right, detained U.S. citizens currently have no way to gain access to lawyers, family or the court itself once they are detained within the military.
“The new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF]. The original (the statute we are fighting in court) never went that far,” Afran said. “Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S.”
The suit against the government challenges the indefinite detention provisions of section 1021 of the 2012 NDAA—which allow the military to indefinitely detain anyone who commits a “belligerent act” or provides “substantial support” to the Taliban, al-Qaeda or “associated forces”—on the grounds that certain terms were unconstitutionally vague and could chill free speech.
The newest version of the NDAA seems to be equating the AUMF and section 1021 of the 2012 NDAA—which the government has argued all along—and thereby codifies precisely what the plaintiffs are fighting in court.
The bottom line, according to Afran, is that the NDAA “is still unconstitutional because it allows citizens or persons in the U.S. to be held in military custody, a position that the Supreme Court has repeatedly held is unconstitutional.”
People Against the NDAA
2013 version National Defense Authorization Act (NDAA)