The National Defense Authorization Act of 2012 (NDAA) was passed by Congress and signed into law by the president on New Year’s Eve of 2011. Activists and other critics charge that the NDAA authorizes the indefinite military detention of U.S. citizens, but supporters counter that the law entails no new powers of detention for the federal government.
In a sense, both sides are right. Insofar as it affirms “existing law” as the basis for federal detention policy, the NDAA does not itself dramatically expand the government’s power to detain U.S. citizens indefinitely. The bad news, however, is the government has essentially already claimed this authority, and the NDAA will only provide more legal cover for the executive branch to further undermine habeas corpus.
Citizens Exempted?
Proponents of the NDAA argue that section 1021 (e) exempts U.S. citizens from indefinite detention. The relevant text reads:
Nothing in this section shall be construed to affect the existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
But critics, including former federal judges Abner Mikva, William Sessions, and John Gibbons, are equally vigorous in their disagreement. The NDAA, they write, “codifies methods such as indefinite detention without charge and mandatory military detention and make[s] them applicable to virtually anyone…including U.S. citizens.”
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