May 26, 2012
Last week, in New York, a US judge, District Judge Katherine Forrest, took a stand against a contentious provision inserted into the current National Defense Authorization Act (PDF), ruling that it was unconstitutional for lawmakers to demand that, in future, those accused of involvement with terrorism — including US citizens and residents — must be subjected to mandatory military custody, and held indefinitely without charge or trial (PDF).
The provision (Section 1021), designed to allow detention without trial until the end of the hostilities in the "war on terror," is meant to apply to anyone "who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks," or 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."
Of particular concern to the plaintiffs in the case — led by the journalist Chris Hedges, and also including Noam Chomsky, Daniel Ellsberg, the Icelandic parliamentarian and WikiLeaks activist Birgitta Jónsdóttir, Kai Wargalla of Occupy London, and the US journalists and activists Jennifer Bolen and Alexa O’Brien — was the inclusion of anyone who "has directly supported … hostilities in aid of such enemy forces," because they perceived that it could apply to speech, or the written word, endangering journalists and activists, for example, and would contravene Americans’ First Amendment rights.
Chris Hedges noted that Judge Forrest "categorically rejected the government’s claims that the plaintiffs did not have the standing to bring the case to trial because none of us had been indefinitely detained, that lack of imminent enforcement against us meant there was no need for an injunction and that the NDAA simply codified what had previously been set down in the 2001 Authorization for Use of Military Force [AUMF]."
The reference to the AUMF is important, as it is the existing law that endorses the military detention of alleged terror suspects. Passed by Congress the week after the 9/11 attacks, it authorizes 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 I explained in an article last September:
This open-ended document is the bedrock of the occupation of Afghanistan, which began on October 6, 2001, and of the detention of prisoners in Guantánamo, as the Supreme Court confirmed in June 2004, in Hamdi v. Rumsfeld, ruling explicitly that it authorizes the detention [until the end of hostilities] of those held as a result of the President’s activities.
Noticeably, however, as Hedges and his fellow plaintiffs successfully argued, the AUMF does not include "associated forces," in addition to al-Qaeda and the Taliban, or those who have "directly supported … hostilities," and, as a result, they had reason to fear that the terminology used was far too vague to guarantee the safety of anyone regarded as a threat by the government, for whatever reason, and Judge Forrest agreed, describing Section 1021′s "chilling impact on First Amendment rights."
Hedges surmised that what swung the decision in the plaintiffs’ favor was the government lawyers’ refusal to guarantee that Section 1021 would not be used against them. As he described it:
The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole. And this, I think, decided the case.
"At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021," Judge Forrest noted. "Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years."
However, while this ruling is good news for Americans — and it is to be hoped that the government does not appeal — lawmakers continue to be entranced by the power involved in passing legislation that can consign individuals to indefinite detention without charge or trial. As the 2013 version of the NDAA passes through Congress, lawmakers on Friday (just two days after Judge Forrest’s ruling) defeated an amendment, tabled by Rep. Adam Smith (D-Wash.) and Rep. Justin Amash (R-Mich.), which, as Human Rights First explained, would have "ban[ned] indefinite military detention and military commission trials in the United States, making clear that individuals apprehended on US soil who are suspected of terror-related activities can only be tried in a civilian court with all the corresponding constitutional protections."
Interestingly, the amendment would also have overturned Section 1022 of the NDAA, which, as Human Rights First also explained, "requires that a category of foreign terrorism suspects be initially held in military custody, absent a presidential waiver." Human Rights First added that, although President Obama "issued a Presidential Policy Directive limiting the instances in which mandatory military custody applies, future Presidents are not bound by this directive."
The battle, then, is far from over, and as it proceeds I can only hope that more American commentators focus not just on Section 1021 of the NDAA, but also on Section 1022, and, in particular, on the enduring menace posed by the Authorization for Use of Military Force. To put it bluntly, the only reason that lawmakers were able to dream up the military detention provisions included in the NDAA in the first place was because of the continued existence of the AUMF.
Far from being a historical footnote, the AUMF is actively used to justify the detention of prisoners at Guantánamo, where 169 foreign prisoners continue to be held on essentially the same basis that campaigners against the NDAA have been protesting about so vociferously. Americans, it should be noted, are not necessarily immune to the AUMF, as three Americans were imprisoned without charge or trial on the US mainland — where they were tortured — under the Bush administration.
These men were the US citizens Jose Padilla and Yaser Hamdi, and the legal US resident Ali al-Marri, who were held incommunicado for several years on US soil. When challenged, however, George W. Bush refused to defend his decision to hold them without charge or trial as "enemy combatants."
Hamdi, initially held in Guantánamo, was swiftly moved to a military brig on the US mainland (in April 2002) when it was established that he was a US citizen, who had moved to Saudi Arabia as a child, and he was repatriated in September 2004, on the condition that he renounced his citizenship, after his case, Hamdi v. Rumsfeld, along with another Guantánamo case, Rasul v. Bush, established that the writ of habeas corpus extended to the Guantánamo prisoners.
Padilla, seized as he flew into the US from Pakistan in May 2002, was mentally destroyed by his isolation and torture as an "enemy combatant" over a three-year period. He was moved into the federal court system in November 2005, and was tried and convicted of vague "material support" charges in August 2007, and given a 17-year sentence in January 2008.
Al-Marri, seized in November 2002 and held as an "enemy combatant" for over five years from June 2003 (and subjected to extreme isolation and torture for the first 18 months) was inherited as an "enemy combatant" by President Obama, who swiftly moved him into the federal court system in February 2009, where he accepted a plea deal on terrorism-related charges two months later, and was given an eight-year sentence in October 2009.
To be honest, there is no sign that any US government would want to revisit George W. Bush’s experiments, even with the support of the NDAA, but it is, of course, a possibility, and for that Judge Forrest is to be commended for putting Americans’ rights ahead of the dark desires of manipulative lawmakers.
However, it is, above all, a disgrace that foreigners are being ignored by those campaigning against the indefinite military detention of US terror suspects — or those seized in the US — because the principles of detention are the same whether you are an American or not. Until the "war on terror," there were only two ways of depriving someone of their liberty — either they were criminal suspects, who would be tried, promptly, in federal court, or they were prisoners of war, to be held humanely until the duration of hostilities, and protected, under Common Article 3 of the Geneva Conventions, from "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and from "outrages upon personal dignity, in particular humiliating and degrading treatment."
(A third category, to be fair, is a country’s own military personnel, who can be court-martialled, but this is not an issue that is at the forefront in the discussions about the NDAA or the "war on terror.")
As a result of the double standards outlined above, military detention will remain an option for lawmakers until significant pressure is exerted to close Guantánamo and to repeal the AUMF. The problem is not indefinite military detention without charge or trial for Americans, but indefinite military detention without charge or trial for everyone, and it needs to be outlawed for what it is — an invitation to tyranny, whether applied to foreigners or turned on one’s own people.
POSTSCRIPT: On Friday May 25, prosecutors complained about Judge Forrest’s ruling. As Reuters described it, "In a brief filed in New York late on Friday, the government said the plaintiffs in this particular case had nothing to fear." Prosecutors in the Manhattan US Attorney’s office wrote, "As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021."
Reuters also noted that Bruce Afran, one of the lawyers for the plaintiffs, pointed out that the government’s brief still "failed to address fundamental concerns about what type of conduct is outside the law, and which person or group is deemed sufficiently 'independent’ of enemy forces." He said, "It is surprising that the government is pursuing this case because it has other statutes that specifically target terrorist groups."
Prosecutors, noting that "courts rarely intervene in matters directed by the Executive Branch," as Reuters put it, also wrote, "Issuing an injunction regarding the President himself, or restraining future military operations (including military detention) … would be extraordinary," and noted, in addition, that they "were considering an appeal of the judge’s order," even though, in a signing statement he attached to the 2012 NDAA when he approved it, on December 31 last year, President Obama described Section 1021 as legislation that "breaks no new ground and is unnecessary," because "[t]he authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then," and also stated, "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."
As a result, it is unclear why prosecutors are considering an appeal.
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 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.