There has been a great deal of confusion over whether the indefinite detention provisions in the 2012 National Defense Authorization Act (NDAA) apply to US citizens or not – the simple answer is that it is too early to tell.
The NDAA provisions greatly strengthen a framework for detaining suspected members of Al Qaeda or its affiliates that is derived from the law of armed conflict. Under the law of armed conflict belligerents can be detained until the conflict ends or until they no longer pose a threat.
The NDAA drafters draw a clear distinction between US citizens and non-US citizens which is itself problematic since equality before the law is one of the most fundamental principles of justice and a core human right.
The NDAA “requires” that non-US citizens be treated as enemy combatants rather than as criminal suspects unless the President issues a waiver in the interests of national security.
The NDAA does not “require” that US citizens be treated in a like manner. Indeed Section 1021(e) of the Act appears to offer US citizens some protection stating:
“Nothing in this section shall be construed to affect the existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who captured or arrested in the United States.”
This might seem promising but, unfortunately, the existing the law does allow for the detention of a US national on US soil as an enemy combatant under the law of armed conflict.
In a case heard during World War II, Ex parte Quirin, the Supreme Court upheld the executive’s right to hold a dual US-German national, Herbert Hans Haupt, as an enemy combatant. Haupt had landed in Florida from a German U-Boat in June 1942 as part of a unit of Nazi saboteurs who were swiftly apprehended by the US authorities. Haupt was subsequently tried by Military Commission and sent to the electric chair.
The facts of the Haupt case are interesting in and of themselves. Haupt claimed that he had only joined the German mission as a means of returning home. On setting foot on US soil he immediately left his companions and made his way to his parents’ home in Chicago where he was ultimately arrested. He did not carry out any acts of sabotage during his ten days at large. His parents were both convicted of treason for not turning their son into the police and his father remained in prison until 1957.
Ex parte Quirin was cited in some detail by the proponents of the indefinite detention provisions during the extended debate on the bill in the Senate, as in this exchange on December 1st between Senators Jon Kyl (R-AZ) and Lindsay Graham (R-SC):
Mr. GRAHAM. Does the Senator agree with me that our Supreme Court ruled then that when an American citizen decides to collaborate and assist an enemy force, that is viewed as an act of war and the law of war applies to the conduct of the American citizen?
Mr. KYL. Mr. President, I would say to my colleague, yes. My colleague knows this case, I am confident. I think one quotation from the case makes the point clearly–in Ex parte Quirin the court made clear: “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of his belligerency.”
During the debate Lindsay Graham also cited the shockingly mismanaged Jose Padilla case as presenting further legal precedent for holding US citizens:
“The statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
Watch the clip here:
It is no overstatement to suggest that the idea that US citizens could be held indefinitely as enemy combatants has significant support in the Senate.
As so often with the passage of legislation, the full implications of the NDAA will only become clear over time as the manner in which it is put to use by this, and successive, administrations is tested in the courts. The NDAA is going to be with us for some time and it is worth bearing in mind that President Santorum might interpret it rather differently than President Obama.
As things currently stand, we can say this: The NDAA has further entrenched the law of war paradigm at the heart of US counterterrorism efforts; At least one US citizen – Jose Padilla – has been detained as an enemy combatant since 9/11; The NDAA makes it more likely, not less, that this will happen again.
Reacting to the concerns of civil liberties groups, President Obama sought to allay fears that the NDAA might be used to detain American citizens in the signing statement he released on New Year’s Eve:
“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”
Of course, this comes from the man who also once pledged to close Guantanamo so it’s not exactly a promise you can take to the bank.