Why Does the Government So Desperately Want Indefinite Detention for Terror Suspects?

22.9.12

What is the government doing? Last year, when Congress passed the National Defense Authorization Act (NDAA), with its contentious passages endorsing the mandatory military detention of terror suspects, there was uproar across the political spectrum from Americans who believed that it would be used on US citizens.

In fact, it was unclear whether or not this was the case. The NDAA was in many ways a follow-up to the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which authorized 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.”

As confirmed by the Supreme Court in June 2004, in Hamdi v. Rumsfeld, the NDAA also allowed those seized — who were allegedly involved with al-Qaeda and/or the Taliban — to be held until the end of hostilities. The AUMF was, and remains the basis for the detention of prisoners at Guantánamo, but on two occasions President Bush decided that it applied to US citizens — in the cases of Jose Padilla and Yaser Hamdi, who were held on US soil as “enemy combatants” and subjected to torture.

When challenged in court, however, President Bush never attempted to defend holding US citizens without charge or trial, transferring Padilla to the federal court system, and sending Hamdi back to Saudi Arabia, where he had lived for many years before his capture in Afghanistan and his initial transfer to Guantánamo. In the case of the legal US resident Ali al-Marri, a third man held as an “enemy combatant” on the US mainland, and also subjected to torture, President Bush avoided making a decision about him, and it was left to President Obama, who transferred him into the federal court system soon after taking office in January 2009.

If the muddled nature of these precedents made it difficult to establish whether or not the new legislation applied to US citizens as well as foreigners, the changes in wording from the AUMF were also inconclusive. Section 1021 was similar to the AUMF in that it applies to anyone “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” but it also expanded the AUMF’s remit, stating explicitly that the military custody provisions also apply to anyone “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 problem, as anyone capable of looking at the legislation objectively has realized, is that the “associated forces” included with al-Qaeda and the Taliban are not defined, and could, therefore, be applied to anyone regarded as a threat, who could, however tangentially, be claimed to be associated with al-Qaeda and/or the Taliban. As the New York Times explained last week, the NDAA’s enactment “was controversial in part because lawmakers did not specify what conduct could lead to someone’s being detained, and because it was silent about whether the statute extended to American citizens and others arrested on United States soil.”

When President Obama signed the NDAA into law on December 31 last year, he tried to allay fears about the military detention provisions. He claimed that Section 1021 “breaks no new ground and is unnecessary,” because “[t]he authority it describes was included in the 2001 AUMF [the Authorization for Use of Military Force], as recognized by the Supreme Court and confirmed through lower court decisions since then.”

He also sought to reassure those who feared that the provisions might be applied to US citizens, stating, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”

However, after the President signed the NDAA into law, a number of journalists and activists decided to test whether or not he was being truthful, as they feared that the NDAA’s military custody provisions were, in fact, far more sweeping than the AUMF, and that  “associated forces” could include Americans, and could include journalists and activists. The lead plaintiff was the journalist Chris Hedges, and others included Noam Chomsky, Daniel Ellsberg, the Icelandic parliamentarian and WikiLeaks activist Birgitta Jónsdóttir, Kai Wargalla, one of the founders of Occupy London, and the US journalists and activists Tangerine Bolen and Alexa O’Brien.

In May, as I explained here, Hedges and co. won a resounding victory, when, in the District Court in New York, Judge Katherine Forrest struck down, through an injunction, Section 1021 of the NDAA, agreeing with the plaintiffs that it was “constitutionally infirm, violating both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

Judge Forrest’s actions were not permanent. Technically, as she explained in her ruling, she “preliminarily enjoin[ed] enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings,” and those further proceedings led, last week, to another landmark ruling, when, responding to further submissions by both parties over the last four months, she again sided with the plaintiffs, issuing a permanent injunction on Section 1021 of the NDAA, and explaining why:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention — potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity — and that specificity is absent from §1021(b)(2). [the key passage that includes "associated forces"].

And yet, despite President Obama’s supposedly soothing statements in December, the administration responded to Judge Forrest’s ruling with hysteria, issuing an emergency appeal, and arguing that her injunction “threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict.”

On Monday — on the 225th anniversary of the signing of the final draft of the US Constitution — Judge Raymond Lohier of the Second Circuit Court of Appeals temporarily stayed Judge Forrest’s injunction, in a brief, one-page ruling, a move that, as the New American noted, “effectively repealed many of that document’s fundamental protections of individual liberties.”

So why the urgency? As Chris Hedges asked on Monday, “If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future?”

A plausible explanation was provided by one of the lawyers in the case, co-lead counsel Bruce Arfan, who stated, “A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the US and saying that DHS is looking for the Islamic leaders of these likely riots. It is my view that this is why the government wants to reopen the NDAA — so it has a tool to round up would-be Islamic protesters before they can launch any protest, violent or otherwise. Right now there are no legal tools to arrest would-be protesters. The NDAA would give the government such power. Since the request to vacate the injunction only comes about on the day of the riots, and following the DHS bulletin, it seems to me that the two are connected. The government wants to reopen the NDAA injunction so that they can use it to block protests.”

Bruce Arfan may be right, and it may be that the current unrest — blamed on an anti-Islamic film, but more honestly to do with the ongoing injustice of US foreign policy, and Obama’s extensive use of drones — has shaken the administration to such an extent that they fear reprisals in the US, and want to be prepared.

That does not explain why the administration has been fighting Judge Forrest for many months, although it does explain why reports from the plaintiffs suggest a recent spike in the level of the government’s hysteria. Unfortunately for the administration, though, the detention policies at Guantánamo that these provisions echo have, from the beginning, been a dangerous aberration. The Geneva Conventions and US criminal statutes still provide all the tools necessary to detain people regarded as dangerous.

If the administration has other views regarding military detention without charge or trial — such as finding an excuse to hold people indefinitely on suspicion of what they might do — senior officials need to stop before they start down this road. Men are dying at Guantánamo after ten years against whom no actual evidence of wrongdoing exists, and this and all the other ruinous lawlessness that was implemented by the Bush administration does not, in the end, make Americans safer. Obama once claimed to know that the kind of injustices enshrined at Guantánamo only serve to recruits enemies for America. Revisiting those injustices through the NDAA — if that is what the administration has in mind — is not the answer, and should be avoided at all costs.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Digg, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

34 Responses

  1. Jeff Kaye says...

    The U.S. executive has gotten a taste of dictatorial power and seeks to expand and institutionalize it. They know there is no prospect of serious Islamic rioting in the U.S. That is truly not possible, as the Islamic population, outside of perhaps Dearborn, is far too small, isolated and dispersed, and that is assuming — which I do not — that the kinds of complaints motivating Islamic demonstrators abroad are shared here in the U.S. by those of Islamic faith. After all, these protests are, as you note, primarily aimed at the U.S. as an oppressor power, not at a YouTube video.

    That said, the protests appear to be organized as well by mullahs and other religious ideologues who know only too well that they can offer nothing substantial to better the lives of the 100s of millions of followers of Islam who are immiserated by foreign capital and the domestic servants of same in each country. (And those servants shift seats of power like a musical chairs game played out over decades — yesterday Mubarak and Gaddaffi, and tomorrow Morsi and who?) They have yet to learn that the agents of oppression in their own lands are those who keep them tied to international capital.

    Without even a flawed or specious alternative out there to the unrtrammeled rule of imperialism, as once, believe it or not, the Soviet Union was for millions of people, even after Stalin destroyed its revolutionary possibilities, there is very little to stop the drift toward outright dictatorship. That’s what the NDAA represents. When I say “very little” I don’t mean to derogate the fine work of judges like Katherine Forrest, or human rights workers and civil libertarians, or even journalists! But as a matter of social weight, they and we account for little.

    That is why the Occupy movement was so painful for me to watch. While people were mobilized and wanting to fight the depression forced down their throat by bankers and government ministers, those who joined Occupy were importuned to be active in a movement with no leaders and no clear agenda, and really no agenda when it came to power. Now here we are even more desperate than ever.

    Out of the struggle of the future, which will be more dire than what we have seen thus far, will rise new leaders and movements capable of opposing imperialist rule.

  2. Andy Worthington says...

    Hi Jeff,
    Great to hear from you my friend. It’s been a while. I notice you have an important new article up on Truthout, following up on your dedicated investigative work on the drugging of prisoners: http://truth-out.org/news/item/11640-new-revelations-suggest-dod-cover-up-over-detainee-drugging-charges
    As for the NDAA, and its context, you sound rather despondent, and I don’t blame you. I also understand your disappointment about Occupy, although I do hope new developments will follow. I actually think it had been so long since there was organized resistance, and people are so conditioned not to dissent, that it was remarkable that Occupy happened at all, and I also understand the caution regarding leaders and agendas. I think, first of all, it was important to formulate the questions! So anyway, I remain cautiously optimistic that something else will arise – it’s not as though the problems have been addressed, after all!

  3. Andy Worthington says...

    Bennett Hall wrote:

    i distinctly recall Obama stating in his Convention acceptance speech (paraphrasing), “I will always tell you the truth” – perhaps there were a few non-spoken *Asterisks in there somewhere?

  4. Andy Worthington says...

    Ah yes, Obama. The man who made promises – unless it was politically expedient not to follow through with them, which has turned out to be so much of the time.

  5. Andy Worthington says...

    David Taylor wrote:

    Well the elite always ask for more than they want knowing that the people will always compromise and the elite will always wind up with what they want.

    In this particular case the elite want acceptance of Indefinite Detention and the American people compromised on that point. The American people say “lock those people up forever but not us”. So they have accepted the idea of Indefinite Detention and now it is just a matter of wiggle room of who gets Indefinitely Detained.

    Indefinite Detention is NOT acceptable for anyone.

  6. Andy Worthington says...

    David Taylor wrote:

    Oh yea, Obama is a War Criminal just like Bush, Clinton, Reagan, Carter, and all the other presidents throughout history.

  7. Andy Worthington says...

    Thanks, David. You’ve expressed the problem very well:
    “The American people say ‘lock those people up forever but not us’. So they have accepted the idea of Indefinite Detention and now it is just a matter of wiggle room of who gets Indefinitely Detained. Indefinite Detention is NOT acceptable for anyone.”
    Thanks for that.

  8. Jeff Kaye says...

    Sorry for my uncouthness in not giving first a big hi to you, my friend. thanks for noting the T.O. article!

  9. Andy Worthington says...

    No worries, Jeff – and it’s always a pleasure to mention your articles.

  10. Andy Worthington says...

    Chelsea Channing wrote:

    Well stated.

  11. Andy Worthington says...

    Scott Rickard wrote:

    It’s obvious. There are plans to use it soon.

  12. Andy Worthington says...

    Thanks, Chelsea and Scott – and everyone who’s liked and shared this. Perhaps there are plans, Scott, but it could be that senior administration officials, and intel and the military, are stoking up their own fears of living without indefinite detention. 10 years of implementing it at Guantanamo has normalized it, as everyone sensible knew. Whatever the exact truth about the government’s plans, it really is hugely important that people are informed about this.

  13. Why Does the Government So Desperately Want Indefinite Detention for Terror Suspects? | Andy Worthington | American Spring says...

    [...] http://www.andyworthington.co.uk/2012/09/22/why-does-the-government-so-desperately-want-indefinite-d… Share this:TwitterFacebookLike this:LikeBe the first to like this. This entry was posted in 9/11, Barack Obama, Domestic Politics, Domestic Terrorism, Indefinite Detention, NDAA, Police State Tactics, Totalitarian Regime by americanspring2011. Bookmark the permalink. [...]

  14. Lynn Myre says...

    Thanks for this excellent article and the provocative questioning title. I too wonder why so insistent?

  15. Andy Worthington says...

    Thanks, Lynn. Yes, exactly. It really ought to make people worry – either that they fear something, have something planned, or have completely bought into the narrative of the age of fear, and are incapable of realizing that they might as well be cosying up with Cheney and Addington, and conceding that those two war criminals were right all along. Personally, I suspect the latter, as I believe that the endless deaths by drones and the kill lists and the obsessions with it all make paranoia the default position for homicidal governments. I’m sure all the tyrants in history felt the same, sleeping with one eye open …

  16. Andy Worthington says...

    George Kenneth Berger wrote:

    I’m sharing this now.

  17. Andy Worthington says...

    Gabriella Turek wrote:

    Chris Hedges says that it has a lot to do with the perceived coming unrests. The élites know what’s coming and they want to make sure they will be able to control the populace. I tend to agree with him.

  18. Andy Worthington says...

    Thanks, George and Gabriella, and the many hundreds of people who have liked and shared this. So yes, Gabriella, I tend to share Chris’s thoughts o the matter, although I also know how aggressively the DoJ doesn’t like to lose court cases on national security issues, and I also think that being a drone-wielding, kill-list driven administration also makes senior officials paranoid. We’ll see. Enlightenment would be useful. No valid reason exists for keeping these wretched provisions, but it would at least be worthwhile for the American people to be told the truth!

  19. john says...

    Jeff Kaye said:

    “They know there is no prospect of serious Islamic rioting in the U.S. That is truly not possible, as the Islamic population, outside of perhaps Dearborn, is far too small, isolated and dispersed…”

    Yeah, “small, isolated and dispersed” and also much better integrated in America than in any other non-Muslim country. They are literate and tend to be affluent, in fact, much more so than a large percentage of US born whites. Though 911 and the wars in Afghanistan and Iraq have certainly had a negative impact, Muslims in America are by and large loyal Americans.

  20. Andy Worthington says...

    Yes, exactly, John. Thanks.

  21. Andy Worthington says...

    Gabriella Turek wrote, in response to 18, above:

    Andy, I don’t think the American people have been told the truth – on any subject – for a long time

  22. Andy Worthington says...

    Julien Arbor wrote:

    Gabriella – American people? Or American politicians?

  23. Andy Worthington says...

  24. Andy Worthington says...

    Thanks again, Gabriella, and thanks also, Jules and Jacob. So many layers of secrecy and paranoia, so many people getting a kick out of power, and so much money-making in the military-industrial complex – so much to challenge!

  25. Marih Fiba says...

    They are being detained for one simple reason. They know too much. They have information that the administration does not want leaked. Information that might reveal that the US and Israel were involved in 911. Or that would exonerate Bin Ladin.

    It’s the same reason Bin Ladin was killed, he knew too much. They made his death look like a mistake. Saddam Hussein, Gadafi, Milosevic. They didn’t kill Noriega but they were able to stash him away. The list goes on and on.

    The wholesale slaughter of the German leaders after WWII stands out. In one swoop they eliminated anyone who could present a counter to the Allies justifications for starting WWII. They kept Rudolph Hess in solitary confinement for his entire life. Why? He might write a memoir that exposed Allied warmongering that led to WWII, or itemized Allied atrocities, or even worse, questioned the Holocaust. A serious, well documented memoir by Hess would have been a disaster for the Allies. Even now, 65 years after the war, it is still illegal to discuss certain aspects of the war.

    It’s not a mystery. Winning a war requires suppression of the truth after the war ends.

  26. Andy Worthington says...

    Gabriella Turek wrote:

    Check out Glenn Greenwald’s talk “The Surveillance State” on Alternative Radio. http://www.alternativeradio.org/products/greg002

  27. Andy Worthington says...

    Julien Arbor wrote:

    Gabriella… my apologies. I misread you post and thought you said “I don’t think the American people have told the truth… “. Speaking for myself… I’ve been going through a great deal about this for a very long time. Prior to being disabled… I was a practicing psychologist… who was horrified and ashamed regarding some of what my colleagues had done! This is an extremely and deeply very serious issue to me. And at the same time… I very much believe that should Romney win the election…. it’s only going to be worse. As someone who is disabled… I don’t believe that it would be an exaggeration that people like myself would be looking at Action T4 Part 2. The only difference is there won’t be a damn thing “merciful” about it! I am what was called a “useless eater”…..

  28. Andy Worthington says...

  29. Andy Worthington says...

    From that Wikipedia article, for reference:

    Action T4 (German: Aktion T4) was the name used after World War II for Nazi Germany’s “Euthanasia programme” during which physicians killed thousands of people who were “judged incurably sick, by critical medical examination”. The programme officially ran from September 1939 until August 1941, but it continued unofficially until the end of the Nazi regime in 1945.
    During the official stage of Action T4, 70,273 people were killed, but the Nuremberg Trials found evidence that German and Austrian physicians continued the murder of patients after October 1941 and that about 275,000 people were killed under T4. More recent research based on files recovered after 1990 gives a figure of at least 200,000 physically or mentally handicapped people killed by medication, starvation, or in the gas chambers between 1939 and 1945.

  30. Andy Worthington says...

    Thanks again, Gabriella and Jules. Very interesting points and links. Jules, I share your concerns, seeing what is happening here in the UK, where the Tory-led government – through its review process designed to find disabled people fit for work, when so many of them are not – has made it clear that compassion for the disabled is unacceptable in modern Britain.

  31. Sarastro says...

    At the end of the day this is all about the US government having the authority to conduct mass arrests of US citizens, in US itself.

    The US military is now operating as an occupying force on the mainland, which is now a theater of combat.

    The NDAA has to be seen as an extension of the Patriot Act… the latter identified a “terrorist” is someone who actively and energetically opposes US government policies… Once qualified as a “terrorist” the NDAA kicks in allowing mass detentions.

    That’s the structure of these laws … all in anticipation of the Final Solution “over the cliff” budgets to be set in play in 2013 and beyond. The NDAA etc are designed as a response to mass resistance to lethal budget cuts (limiting food stamp assistance and unemployment benefits) in the context of economic collapse.

  32. Stephen says...

    What I do not get is, in a nation supposedly ruled by law,and bound by the chains of its Constitution, how is it that a president can bypass Congress and the Constitution, and claim for himself dictatorial power by simply writing Executive Orders?

    Where are the checks and balances? Why aren’t these operating?
    http://www.westernjournalism.com/a-comprehensive-list-of-obamas-worst-executive-orders/

  33. Andy Worthington says...

    I think 9/11 was the pretext, Stephen. The rules changed, and as many of us feared, without firm action to turn the clock back to September 10, 2001, this lawlessness has now been confirmed by Obama, and will no doubt continue until such time as lawmakers are chosen who care about the law and the Constitution.

  34. The Forgotten Prisoners of Guantánamo « freedetainees.org says...

    [...] and/or the Taliban. Without the dangerous and unjust precedent established at Guantánamo, as I have repeatedly pointed out, there would have been no basis for the outrageous proposals for indefinite detention made by [...]

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