Must We Permit the US Military to Detain Americans without Trial?

The National Defense Authorisation Act before Congress threatens further erosion of US citizens' civil liberties

Three years ago, former Guantanamo Bay detainee Mustafa Ait Idr cautiously sat with me in a Sarajevo cafe, spilling hot coffee as he brought the cup to his lips. Though it was seven months after his release, he was still nursing a broken finger - punishment, he said, for refusing to strip naked in his cell - and was unable to fully grasp the cup due to his loss of dexterity. His face was also partially paralysed from beatings, and he told me how his head was held in a toilet for prolonged periods of time.

Upon his release, he met his youngest son for the first time. Ait Idr was one of "the Algerian Six", a group of European (mainly Bosnian) citizens unlawfully detained at Guantanamo Bay for seven years. In 2008, a US federal judge ordered the release of five of the six men during the first-ever Guantanamo Bay habeas corpus trial. Just to obtain that trial, the men had to prevail in a 5-4 decision from the US supreme court. No charges were ever filed against them.

If the new National Defence Authorisation Act is enacted into law as it is currently written, many believe that American citizens would be in danger of enduring similar indefinite military detention without cause. Last week, the US Senate passed the NDAA, a massive $662bn defense bill with provisions that would amplify the role of the military in the seizure and detention of terror suspects, including US citizens. The act, a lovechild of Senators Carl Levin (Democrat) and John McCain (Republican), would permit the indefinite military detention of US citizens without charges or a trial. While the confusing bill is still a work in progress (the Senate and the House have yet to settle upon a final bill that will go to the president), it is already drawing fierce controversy across the country.

The NDAA holds that the military has the authority to detain "a person who was part of or substantially supported al-Qaida, the Taliban, or associated forces [...] without trial" and authorises "transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity". This implies that a naturalised American citizen could be exiled to their country of origin, even if it endangers their life. It also implies that an American citizen born in the US could be transferred to another "foreign entity".

So, what exactly does "other foreign entity" include? No one is quite sure, but an "entity" akin to the new mercenary company in Abu Dhabi run by Erik Prince, former CEO of Blackwater, cannot be ruled out.

There is confusion as to whether the NDAA applies to US citizens; but Section 1031 of the bill does indeed authorise indefinite military detention, without trial, of US citizens accused - not yet proven guilty, just accused - of terrorist acts. This was clarified in the following exchange on the floor of the Senate:

Senator Rand Paul (Republican): "Under the provisions, would it be possible that an American citizen then could be declared an enemy combatant and sent to Guantanamo Bay and detained indefinitely?"

Senator John McCain (Republican): "I think that as long as that individual, no matter who they are, if they pose a threat to the security of the United States of America, should not be allowed to continue that threat."

Section 1032 of the bill would require mandatory military custody of someone accused of being affiliated with al-Qaida or plotting attacks against the US; American citizens would be exempt from this specific measure. Aside from the unabashed disregard for civil liberties, placing the burden of detention and trial upon the military, rather than civilian law enforcement, diminishes and delegitimises the FBI's role in counter-terrorism efforts. This could make it challenging to collaboratively gather intelligence on domestic terror cells.

The proposed changes would require the military to act as police, wardens and judges - jobs for which it is not equipped. Highly-decorated General Paul Eaton (US Army, retired), has affirmed this, saying:

"After serving for more than 30 years in the military, I can attest to its ability to conduct warfare brilliantly. We prefer not, however, to serve as policemen. The armed forces are not staffed, trained or equipped [...] Our police, FBI and prison system are designed to keep America safe."

Senator Mark Udall (Democrat) sponsored an unsuccessful pitch to omit the controversial detainee portions, but his motion was defeated. The Senate also rejected a measure by Senator Dianne Feinstein (Democrat) to limit mandatory military custody to those captured outside the US. It failed (by a 45-55 vote), with only three Republicans voting in favor. Senator Feinstein did, however, succeed in pushing through a measure that ensures that the bill does not affect "existing law".

The dilemmas and debate lie in the fact that there is a surprising degree of disagreement over exactly what current law does mandate.

Both sides cite the same 2004 supreme court decision, Hamdi v Rumsfeld, to make their argument. Senators Levin and Lindsay Graham (Republican) claim that the ruling affirms that US citizens can be held in military detention indefinitely, and furthermore, that the court approved the holding of Americans as "enemy combatants", including those seized inside the US. For evidence, they point to then Justice Sandra Day O'Connor's phrase, "there is no bar to this nation's holding one of its own citizens as an enemy combatant."

Others, such as Senators Feinstein and Richard J Durbin (Democrat), insist that this argument distorts the Hamdi ruling, which maintained that the Bush administration could hold a citizen captured in Afghanistan as an "enemy combatant". O'Connor stressed, they point out, that the ruling was limited to "a United States citizen captured in a foreign combat zone" while active combat was in progress - an entirely different context from that in which the military could be allowed to capture and hold a US citizen found on US soil. Also of note, Justice O'Connor wrote: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorised."

So, essentially, the Senate has approved a bill that, in part, reaffirms the status quo - about which there is profound disagreement.

Indicative of just how divergent opinions are, Senator Graham recently contended that suspects, including US citizens, open themselves up "to imprisonment and death", adding, "when they say, 'I want my lawyer,' you tell them: 'Shut up. You don't get a lawyer.'" He also advocated for the suspension of Miranda rights for these suspects.

As it is currently written, this bill sanctions excessive military power without due process, demonstrating a total disregard for the US Constitution, specifically Article 3, Section 3, which ensures that nobody can be punished for treason without due process. Notably, all but two Republican senators supported the provisions. The Republican party is fond of rhetoric about the evils of "Big Government" - yet seems to have few qualms about passing a multibillion-dollar bill that escalates the powers of the military to confer an extraordinary grip on civilian life.

Surely, though, since this bill was written in the name of national security, experts in the field would come out in droves in support. Well, about that...

FBI Director Robert Mueller, Secretary of Defense Leon Panetta and Director of National Intelligence James Clapper have all publicly opposed the bill, arguing that it only serves to endanger us further and might even prevent effective counter-terrorism measures. A group of 26 retired generals and admirals recently wrote a letter to senators saying the bill would "do more harm than good".

Collaborative efforts in domestic law enforcement (mostly the FBI and Department of Justice) have allowed the successful prosecution of more than 400 terrorism cases, with high conviction rates, whereas military commissions have only tried a handful of cases, with few convictions. If this bill becomes law, it would mean that if the FBI was interrogating a terrorism suspect, the Justice Department might have to stop the investigation and turn him over to the military.

An obstruction of justice and a debilitating blow to our democracy's touted freedoms, these provisions are shackling the American people, quite literally, on the pretext of national security. Furthermore, these policies do not make us safer. Unless we are prepared to embrace oppressive measures that allow our military to imprison indefinitely our own citizens without charges, we must urge President Obama to veto these assaults on our constitutionally-granted civil liberties.

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