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 although 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 biggest thing about the  NDAA was that you weren’t getting a trial … Nothing in here says that you’ll make it to an Article III court so it literally does nothing,” Dan Johnson, founder of People Against the NDAA, told BI. “It’s a bunch of words, basically,”
Afran noted that the newest version actually goes further than the NDAA that’s now in effect.
“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.”
A group of journalists and activists have sued the government over the indefinite detention provisions of section 1021 of the 2012 NDAA—which allow the government 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 provisions were permanently blocked by Judge Katherine Forrest but went back into effect after Appeals Court Judge Raymond Lohier reinstated them in October because he agreed with the government that section 1021 was simply a “reaffirmation” of the AUMF, which gives the president the authority to indefinitely detain anyone involved in carrying out the 9/11 terrorist attacks.
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.
All of this makes the lawsuit—which will probably go all the way to the Supreme Court—central to the issue of the indefinite detention of Americans.
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.”