American and international reactions Section 1021 and 1022 have been called a violation of constitutional principles and of the
Bill of Rights. Internationally, the UK-based newspaper
The Guardian has described the legislation as allowing indefinite detention "without trial [of] American terrorism suspects arrested on U.S. soil who could then be shipped to
Guantánamo Bay;"
Al Jazeera has written that the Act "gives the U.S. military the option to detain U.S. citizens suspected of participating or aiding in terrorist activities without a trial, indefinitely". The official Russian international radio broadcasting service
Voice of Russia has been highly critical of the legislation, writing that under its authority "the U.S. military will have the power to detain Americans suspected of involvement in terrorism without charge or trial and imprison them for an indefinite period of time"; it has furthermore written that "the most radical analysts are comparing the new law to the edicts of the '
Third Reich' or 'Muslim tyrannies'". The Act was strongly opposed by the
ACLU,
Amnesty International,
Human Rights First,
Human Rights Watch,
The Center for Constitutional Rights, the
Cato Institute,
Reason Magazine, and
The Council on American-Islamic Relations, and was criticized in editorials published in the
New York Times and other news organizations. Americans have sought resistance of the NDAA through successful resolution campaigns in various states and municipalities. The states of Rhode Island and Michigan, the Colorado counties of Wade, El Paso, and Fremont, as well as the municipalities of Northampton, MA. and Fairfax, CA, have all passed resolutions rejecting the indefinite detention provisions of the NDAA. The
Bill of Rights Defense Committee has launched a national campaign to mobilize individuals at the grassroots level to pass local and state resolutions voicing opposition to the NDAA. Campaigns have begun to grow in New York City, Miami and San Diego, among other cities and states. Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint January 13, 2012, in the Southern U.S. District Court in New York City on the behalf of
Chris Hedges against Barack Obama and Secretary of Defense
Leon Panetta to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president December 31. Lt. Col. Barry Wingard, a military attorney representing prisoners at
Guantanamo Bay Detention Camp, noted that under the NDAA "an American citizen can be detained forever without trial, while the allegations against you go uncontested because you have no right to see them".
Views of the Obama Administration On December 31, 2011, and after signing the National Defense Authorization Act for Fiscal Year 2012 into law, President Obama issued a statement on it addressing "certain provisions that regulate the detention, interrogation, and prosecution of terrorism suspects". In the statement the President maintains that "the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF". The statement also maintains that the "Administration will not authorize the indefinite military detention without trial of American citizens", and that it "will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law". Referring to the applicability of civilian versus military detention, the statement argued that "the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost". On February 22, 2012, the Administration represented by
Jeh Charles Johnson,
General Counsel of the U.S. Department of Defense defined the term "associated forces". Johnson stated in a speech at
Yale Law School: On February 28, 2012, the administration announced that it would waive the requirement for military detention in "any case in which officials [believe] that placing a detainee in military custody could impede
counterterrorism cooperation with the detainee's home government or interfere with efforts to secure the person's cooperation or confession". The Administration explained on November 6, 2012, the terms "substantially supported" and "associated forces" in its opening brief before the U.S. Second Court of Appeals in
Hedges v. Obama. With respect to the term "substantially supported" the Obama administration stated: and with respect to the term "associated forces", the Administration cited the above-mentioned Jeh Johnson's remarks on February 22, 2012: The Administration summarized later in its brief that:
NBC News released in February 2014 an undated U.S. Department of Justice white paper entitled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa'ida or An Associated Force." In it the Justice Department stated with respect to the term "associated forces"
Legal arguments that the legislation does not allow the indefinite detention of U.S. citizens Mother Jones wrote that the Act "is the first concrete gesture Congress has made towards turning the homeland into the battlefield", arguing that "codifying indefinite detention on American soil is a very dangerous step". The magazine has nevertheless contested claims by
The Guardian and the
New York Times that the Act "allows the military to indefinitely detain without trial American terrorism suspects arrested on U.S. soil who could then be shipped to
Guantánamo Bay", writing that "they're simply wrong ... It allows people who think the 2001 Authorization to Use Military Force against the perpetrators of the 9/11 attacks gives the president the authority to detain U.S. citizens without charge or trial to say that, but it also allows people who can read the Constitution of the United States to argue something else". Legal commentator Joanne Mariner has noted in
Verdict that the scope of existing detention power under the
AUMF is "subject to vociferous debate and continuing litigation". In the years that followed the
September 11 attacks, the AUMF was interpreted to allow the indefinite detention of both citizens and non-citizens arrested far from any traditional battlefield, including in the United States. Other legal commentators argue that the NDAA does not permit truly "indefinite" detention, given that the period of detention is limited by the duration of the armed conflict. In making this claim, they emphasize the difference between (1) detention pursuant to the "
laws of war" and (2) detention pursuant to domestic criminal law authorities.
David B. Rivkin and Lee Casey, for example, argue that detention under the AUMF is authorized under the laws of war and is not indefinite because the authority to detain ends with the cessation of hostilities. They argue that the NDAA invokes "existing Supreme Court precedent ... that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as 'combatants' or 'belligerents'". This reflects the fact that, in their view, the United States is, pursuant to the AUMF, at war with al-Qaeda, and detention of enemy combatants in accordance with the laws of war is authorized. In their view, this does not preclude trial in civilian courts, but it does not require that the detainee be charged and tried. If the detainee is an enemy combatant who has not violated the laws of war, he is not chargeable with any triable offense. Commentators who share this view emphasize the need not to blur the distinction between domestic criminal law and the laws of war.
Legal arguments that the legislation allows indefinite detention The
American Civil Liberties Union has stated that "While President Obama issued a signing statement saying he had 'serious reservations' about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA", and, despite claims to the contrary, "The statute contains a sweeping worldwide indefinite detention provision ... [without] temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield". The ACLU also maintains that "the breadth of the NDAA's detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war".
Proposed legislative reforms Following the passage of the NDAA, various proposals have been offered to clarify the detainee provisions. One example, H.R. 3676, sponsored by U.S. Representative
Jeff Landry of
Louisiana, would amend the NDAA "to specify that no U.S. citizen may be detained against his or her will without all the rights of
due process". Other similar bills in the
U.S. House of Representatives have been introduced by Representatives
John Garamendi of
California and
Chris Gibson of
New York. The
Feinstein-Lee Amendment that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects was dropped on December 18, 2012, during the merging of the House and Senate versions of the 2013 National Defense Authorization Act. ==Legal challenges to indefinite detention==