NDAA: Indefinite Detention and Unending Warfare

On New Year’s Eve 2011, as people around the world celebrated the arrival of a new year, President Obama signed an appropriations bill into law to little fanfare. The bill, providing funding for defense through 2012, contained provisions civil liberties advocates–as well as ex-military brass–roundly condemned as a violation of tenets central to the spirit of the United States Constitution.

The provisions in question affirm legislation enacted in 2001, following the terrorist attacks perpetrated by members of al-Qaeda. When news of the provisions entered the public sphere, the Internet exploded with paranoia, condemnation, exasperation. Some posts on some message boards and websites announced the beginning of the fall of the American Republic. Journalists and politicians, ex-military officers and analysts wrote op-eds and polemics denouncing or justifying the controversial provisions. Even President Obama, when he signed the bill, expressed “reservations” and felt it necessary to publish a long explanation justifying his action.

As they are written, the provisions do little to further the cause of fighting terrorism. They exist, and were signed into law, simply to shore up or to solidify power, to quell a disagreement between the executive and legislative branches of government–a disagreement that reared its head in the case of the so-called “Underwear Bomber” and, again, in 2011, when the Obama administration assassinated American-born al-Qaeda cleric Anwar al-Awlaki.

Given the nature of the language of the provision, and the inability of the federal government–and various federal agencies–to adopt a uniform definition of “terrorism”–or even of “hostilities,” for that matter–the provisions are at best ineffective in the so-called War on Terror. At worst, they are an affront to the civil liberties of every American citizen, at home or living abroad.

This provision, which allows for the indefinite detention of American citizens and continues to grant the President powers to conduct a “war” that can never conceivably end–fighting a war on terror is like fighting a war on emotions: its “ending” is and will be arbitrary, if it ever ends–is not about war or terror at all. It is, simply, the manifestation of an argument over power by competing branches of the United States government.

A provision in the bill Obama signed reads,

“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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

The language of the provision is of concern. Is it too broad? What is the legal definition of “substantially” supporting someone or something? What is the legal definition of “associated forces …,” etc.? What, for that matter, is the legal definition of “hostilities?”

To understand these questions, we must understand the point of these provisions, which serve to augment a bill passed by Congress and signed into law by President Bush following the September 11, 2001, terrorist attacks. That bill, the Authorization for Use of Military Force (AUMF) enabled President Bush to use any means or force necessary to “smoke out” the “evil-doers,” as Bush might say.

The problem then, as now, however, is the enemy itself. The nature of terrorism is elusive. To defeat terrorism, a government must understand the factors motivating it. Precise rules must be adopted to corner the elusive targets. Legislation governing responses to terrorists and terrorism, to asymmetrical warfare and guerrilla fighters, must be crafted with precision.

Terrorism is a method; it is an act. Different parties employ terrorism for different means, to achieve different goals. A proper definition is needed to craft precise legislation. To craft a useful definition, the various intelligence organizations should pool their information and discern similarities, using these as the basis for the beginning of a working definition.

To prevent acts of terror, to dilute these methods, we must gather, maintain, and share intelligence. Acquiring intelligence from those responsible, or from those who supported the responsible parties, is critical. The necessity of such legislation requires precise, calculated approaches to detaining combatants and to extracting intelligence from them. In a post 9/11 world, the government must enact safeguards and methods to protect its citizens–but the legislation must be proportional to the threat. Dismantling the civil liberties of over three hundred million people to protect the lives of thousands of civilians constitutes a misappropriation of power and gross misconduct by the representatives elected to provide security for their citizens.

An issue with provisions in the NDAA, however, is definition. There are no universal definitions of “terrorism,” “terrorist,” or “terror organization.” Even federal agencies within the United States disagree–the Pentagon and the Justice Department, for example, define “terrorism” differently. For any authorization of force or resources to combat non-state actors, definitions must be strict, precise.

Since federal language is neither strict nor precise, the wording in the provision is clunky: “Al Qaeda, the Taliban, or associated forces.” To analyze the wording is to uncover a couple of problems, most pressing of which is the specificity by which these provisions are written. Read literally, the provisions authorize the government to act only in situations in which Al Qaeda, the Taliban, or people or institutions somehow connected to those groups plot or execute an attack against America or her interests abroad.

But if a start-up organization with no known or inferred links to Al Qaeda, the Taliban, or forces associated with Al Qaeda or the Taliban perpetrates an attack against the United States, emergency legislation will be required to grant the President the authority to execute the acts covered in these provisions. The word “associated” implies some form of connection to Al Qaeda or the Taliban; for similar organizations, “comparable” or even “similar” would have been used.

Article 1, Section 9 of the United States Constitution allows Congress to suspend the writ of Habeas Corpus in times of invasion or rebellion. Article 1 deals with congress; Article 2 deals with executive powers. During the Civil War, Lincoln appropriated powers delineated in Article 1 for use by the executive branch–powers not included in Article 2. He suspended the writ of Habeas Corpus, infringing, as many believed, on congressional privilege. The rights of the congressional branch versus the executive branch in this matter has been an issue since 1862, when Lincoln acted as he did.

These provisions essentially codify Congress’s ability to exercise its constitutional right to suspend the writ of Habeas Corpus while granting the executive branch power–and placing on its shoulders “blame” should the executive branch exercise poor decision-making abilities. The troubling nature of NDAA and AUMF is that time frames are broad, leading to cases of indefinite detention.

Article 1, Section 9 of the Constitution states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public safety may require it.” The wording here implies that the writ of Habeas corpus can be suspended for finite periods of time–during rebellion or invasion; when one or the other concludes, one can assume, the privilege would be restored.

The provisions in NDAA explicitly state that we are engaged in armed conflict with Al Qaeda, the Taliban, and associated forces, and that those forces “continue to pose a threat to the United States and its citizens, both domestically and abroad.” The wording here is not ambiguous: as long as Al Qaeda, the Taliban, or any person or institution connected with either group is active, they will “continue to pose a threat.”

What’s troubling about this provision is its definition of those engaged in conflict with the US:

“(3) […] nations, organization, and persons who–

(A) are part of, or are substantially supporting, Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, or;

(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

(4) the president’s authority pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.”

Having defined the opposing forces, let’s jump back to examine paragraph (2): “The president has the authority to use all necessary and appropriate force during the current armed conflict with Al Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note).”

Essentially, these provisions serve as an extension of the AUMF, signed into law in late September 2001, authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

In his book, “Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism (Princeton University Press, 2008),” Sheldon S. Wolin wrote, “If the burning of the German Parliament (Reichstag) in 1933 produced the symbolic event portending the destruction of parliamentary government by dictatorship, the destruction of the World Trade Center and the attack upon the Pentagon on September 11, 2001, were a revelatory moment in the history of American political life.” (chap. 1: i)

To Wolin’s proposition, we might add: “It exposed old differences within the government to the American people, creating new conflicts and power struggles; benefiting the Commander-in-Chief and, more importantly, the most powerful military in the history of civilization.”

And now the Commander-in-Chief, and the military, can “use all necessary and appropriate force against those nations, organizations, or persons”–nations, organizations, or persons who are ill-defined or who can be tenuously linked to “Al Qaeda, the Taliban, or associated forces.”

In theory, the President can use the military to arrest members of congress who vote to appropriate money to, say, Pakistan; since there is evidence that Pakistan’s powerful intelligence agency, the ISI, supports the Taliban, it follows that Pakistan is “aiding” the Taliban. If congress were to vote to supply money–or to sell weapons–to Pakistan, one could say members of congress voted to directly support hostilities by a defined nation, person, or organization against the United States or members of its coalition.

The noble eagle is slowly transforming into an ouroboros–a snake eating its own tail. And, as the legislative and executive branches of the U.S. government continue to wallow in intellectually deprived orgies, the American people could one day find themselves slipping into the peristaltic digestive tract of an irrevocably broken and mangled system.