So there's a lot of misconceptions about the NDAA - long and short of it is that it does not authorize the indefinite detention of American citizens. And no, I don't care what Glenn Greenwald says. His reading of the statute has some massive holes in it - and it only works if you ignore 1021(e) in relation to the rest of the bill.
The NDAA specifically states (in 1021(e)) that existing due process law is unaffected by the NDAA.
Background on due process law: Court cases from Boumedienne, Hamdi, and Hamdan: The Supreme Court ruled that due process cannot be taken away if:
1.
You're a citizen captured anywhere in the world - like John Walker Lindh (American Taliban guy). This is based on Fourth Amendment due process protection. Or
2.
You're a foreigner captured in an American jurisdiction - like the Underwear Bomber (based on the Fourteenth Amendment).
So 1021(e) says that the NDAA does not modify existing law on the detention of US citizens. Which law is this? Due process law. More specifically, Boumedienne, Hamdi, and Hamdan (and to a great extent Ex Parte Milligan). These cases mandate due process for any American citizen, even when captured abroad. Due process is also mandated for non-citizens if they're captured on American soil (or an American jurisdiction). Ex Parte Milligan also precludes the use of military tribunals on citizens if civilian courts are open.
Boumedienne makes it clear that habeas is available to anyone held in American custody, and that if habeas is suspended, there needs to be a workable alternative to allow detainees to challenge their custody. Habeas is related to, but distinct from, due process. Habeas is the right an individual has to challenge her detention. Due process is the burden the government must bear to impose detention or punishment. Habeas can be suspended because of a national emergency, but the NDAA, the Patriot Act, and the AUMF have not done so. So habeas is untouched and available to anyone in American custody. But back to due process.
1021 also only applies to two kinds of people
1.
A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
2.
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.
If you think "substantially supported" or "associated forces" is too broad, keep in mind that these groups also have to be engaged in hostilities against the United States. So this exempts people who innocently/unwittingly associate with al-Qaeda or Taliban members (the support isn't substantial enough). It also exempts people who support groups that aren't engaged in hostilities against the US, or didn't help with/plan 9/11.
And even if you did associate with them, if you're an American citizen your due process rights are never suspended. Ever. Not even under the NDAA. The government has to produce enough evidence to convict you beyond a reasonable doubt, otherwise you go free. You can always challenge your detention in court since the NDAA does not suspend habeas corpus. Remember that due process is a constitutional right that cannot be suspended by statute. 1021(e) makes it clear that the NDAA does not affect existing due process law.
Also, believe it or not, you don't lose your citizenship by being accused of supporting al-Qaeda or deemed a terrorist. The government will have to prove its case beyond a reasonable doubt before citizenship is stripped or any other punishment is imposed. Edit to add: someone pointed out to me in the comments that the Eighth Amendment (through Trop v. Dulles) doesn't allow natural-born citizens to be stripped of citizenship as punishment.
The indefinite detention power in the NDAA only applies to foreign fighters captured during hostilities. How is this justified? Under the laws of war, a sovereign nation has the right to deprive its enemies of personnel and materiel for the duration of hostilities. It's the same rationale that allows countries to hold prisoners of war without trying them. (It wouldn't make sense to try an enemy soldier for following the lawful orders of his superiors).
The problem here is that al-Qaeda and the Taliban aren't sovereign nations, and it isn't clear whether their fighters are following lawful orders. This is a gray area - and the NDAA deals with it by giving the military the option of turning over captured fighters to their home nations for prosecution under their criminal systems. They can also be brought here to America and tried as well. Or they can be held as prisoners of war and treated accordingly until hostilities end.
The other problem is the number of detainees at Gitmo that the United States cannot/will not release because (1) the detainees will probably go back to terrorism, but we cannot try them after the Bush administration tortured information out of them (2) they don't want to go back because they fear torture or reprisal (3) no one will take them in. This issue is complicated, but outside the scope of the NDAA itself.
Third problem: when will hostilities end? Easy answer is "when Congress says so." But that doesn't really solve the problem I stated above. It's also beyond the scope of the NDAA as well.
TL:DR: NDAA doesn't take away your due process rights, nor does it allow for indefinite detention. How do I know? As a black man, I make it my business to know when/how the government does its arresting. I also read the fucking bill.
Edit: copypasta
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Topic: United State Govt. drops pretense of freedom [NDAA PASSED] (Read 19237 times)