'Hysteria-busting' FAQ shows no-trial terrorist detention rules just as bad as you thought

Legal/security analyst maps out rights-violating new law, points out one hope for opponents

The 1,000-page document that funds the U.S. military to the tune of $662 billion and, incidentally, gives it the right (and sometimes obligation) to arrest and lock up without trial anyone suspected of terrorism even if they are U.S. citizens arrested within the U.S. is confusing according to legal and national-security blog Lawfare.

Lawfare co-founder Benjamin Wittes wrote what he calls an FAQ to the detention rules in the NDAA because, without a clear explanation of what the National Defense Authorization Act (NDAA) and its rules on indefinite detention actually say, it is impossible to have a reasonable discussion either the bill or its impact.

Wittes, a senior fellow in the Governance Studies division of The Brookings Institution, is clear in his explanations, which avoid hyperbole or even much of a projection of the impact of NDAA's arrest rules.

Unlimited detention seems like a peripheral topic for techies, or did until the same policies that allow the U.S. military and federal law enforcement agencies to do things that seem to violate the Constitution and Bill of Rights also allowed them to invade the privacy of Americans at home, by demanding cell-phone records, GPS data, Internet activity logs and, most alarmingly, chargehackers and Internet trolls with terrorism rather than simply being criminals or idiots.

While he appears to have gotten the facts straight and made a heroic attempt at objective analysis and definition, he falls off the beam on one issue:

He doesn't consider NDAA to have expanded the government's ability to arrest or detain terrorism suspects without trial.

It doesn’t expand on the power to lock up anyone it suspects of harboring terrorist intent without evidence or trial.

What it does it make law out of a set of policies about how the U.S. can treat people suspected of being enemies that patently violate both the letter and spirit of the U.S. Constitution and the Bill of Rights.

Both the Bush and Obama administrations defended their right to detain as being part of the Authorization for Use of Military Force (AUMF) – the authorization Congress passed soon after the Sept. 11, 2001 terrorist attacks.

Defending injustice with hubris and chutzpah

Most of the rest of the justification and defense of the no-trial Guantanamo Bay detention policy relied on the Bush administration's claim of Presidential war-time powers.

The practical defense – staving off opponents by scapegoating them and the detainees and daring them to oppose a presidential administration in time of war – is what kept in force policies that allow not only arrest and detention of those suspected of terrorism, but also the right to torture them for information, remand them to countries with more liberal rules on interrogation-by-torture and lie about both detainees and their status.

When denials of habeas corpus, the assumption of innocence and other basic tenets of U.S. law were forced into the sunlight, Wittes wrote, "the courts have had a decidedly mixed reaction."

Courts generally ruled against detention of people arrested within the U.S., but were even more forgiving of policies about those arrested overseas than the Bush administration's interpretation of AUMF.

"In light of all this, a law that writes the administration’s successful litigating position into statute cannot reasonably be said to expand the government’s detention authority," Wittes wrote.

That question is the one around which debate about detention rules in NDAA will eventually collapse.

Is it just – or even reasonably fair – to take a set of abusive policies opposed by the majority of Americans and that contravenes specific language in the Constitution against detention without trial, and turn them into law tucked into a spending bill intended to support a military weaning the country from one war, still fighting another and just beginning to respond to persistent, successful digital attacks on its networks and those controlling the critical infrastructure of the U.S.?

No. Policy is policy. Law is law.

One can be overturned by the decision of a new administration, modified in practice or abolished altogether when it's found to be unworkable.

The other is a formal statement that the United States and its much-feared military believe they have the right to impose on those it fears punishment and incarceration under terms that patently violate the most basic tenets of its own principles and law.

Bad policy becomes bad law

The rest of Wittes' explanation, while balanced and non-inflammatory, does little to make the rest of the language any less odious.

    Here are some specifics:
  • NDAA does not specifically allow detention-without-trial of U.S. citizens, but doesn't ban it either.
  • NDAA does not require that terrorism suspects be detained by the military; it only presents the option. So far, the military and both the Bush and Obama administrations have taken that option almost exclusively in situations where there was a choice.
  • NDAA does prevent the closure of Guantanamo Bay – because we might need it to stash non-persons.
  • NDAA does not prevent civilian, rather than military, trials of suspected terrorists.
  • NDAA does not repeal the Bill of Rights; it just gives the federal government a way to get around them and violate the rights of suspected terrorists anyway. Repeal or not, that is corrosive to the idea of both civil rights and inalienable ones – deterioration we can't afford.
  • NDAA does require one improvement: Long-term detainees who have been locked up in military prisons without trial now have the right to a military lawyer and a hearing in front of a military judge, to whom they can make the case that the government is wrong to lock them up.

That one improvement is a big one from the point of view of detainees who had no alternative at all before the Obama administration began more ad hoc screening of detainees.

Despite the overall negative reinforcement in the language on detention within NDAA, Wittes points out one benefit of codifying bad policy: Policies that are written down piecemeal, or are followed without any documentation at all, stand little chance of being challenged in court.

Once they're written down in firm language that defines some powers and walls off others, the policy becomes a solid, definable thing that can be tested by human- and civil-rights groups in court.

That may be the only good thing about the unlimited-detention rule.

Yes it turns into law the unconstitutional power to detain suspects without trial.

In becoming law, however, the policy becomes part of the ongoing debate – through legal, political and sometimes military means – that is the actual culture of the United States.

The U.S. was founded amid a bloody fight over what is right, what limits should restrain the powerful and what rights should belong to the individual.

Injustice often survives our imperfect legal and political processes, but the processes themselves are designed to examine injustice and, wherever possible, set it right.

If neither the Bush nor Obama administrations were willing to reverse and ban the policy of indefinite detention, at least writing it into law gives activists and courts something to examine, debate and, eventually, crush.

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