Sections 1021 and 1022
It is sections 1021 and 1022 that human rights organizations have in mind when they say that the NDAA enshrines indefinite detention without charge into US law.
Section 1021 purports to “affirm” the military’s authority to hold people in indefinite detention without charge pursuant to the AUMF. Although the original House version of the bill would have stated explicitly that the US continues to be in an armed conflict with Al Qaeda, the Taliban and associated groups, the final version of the bill is somewhat more circumspect.
Section 1022 takes a subset of the persons possibly subject to military detention under section 1021—focusing essentially on persons with a stronger connection to terrorism—and creates a presumption that they will be held in military detention.
The bad news is that, as passed, sections 1021 and 1022 represent clear congressional approval of what, up to now, has been solely the executive branch’s decision to hold people in indefinite detention without charge. (Remember that the AUMF itself was silent on detention questions.) Giving the practice a firm and explicit statutory grounding not only makes it less vulnerable to legal challenge, it may well make the practice more permanent.
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