Senate May Have Faulty Aim at Indefinite Detention Law
MANHATTAN (CN) - Reflection on the internment of Japanese-Americans during World War II should compel Congress to reform the 2012 National Defense Authorization Act (NDAA), U.S. senators warned at a hearing Wednesday.
A lawyer who is suing the NDAA's architects told Courthouse News, however, that the senators' proposed remedy, the so-called Due Process Guarantee Act, is a "farcical" bill that would actually "validate" the indefinite detention provisions.
Signed on New Year's Eve, the NDAA grants the military the power to indefinitely detain any person it accuses of aiding al-Qaida or "associated forces" without charge or trial.
President Barack Obama issued an executive order on Tuesday night limiting Section 1022 of the law, which requires military custody for terror suspects. The provision that allows for the indefinite detention of U.S. citizens, section 1021, remains untouched.
Sen. Patrick Leahy, D-Vt., began the hearing in Washington on Wednesday by invoking Japanese-American mass internment as "a tragic chapter in our nation's history."
His Democratic colleague from California, Sen. Diane Feinstein, recounted how her father took her to the Tanforan Race Track in San Bruno, Ca., as a young girl to witness Japanese-Americans being processed for internment.
"The interior of the racetrack was filled with tiny shacks," said Feinstein, who voted for the NDAA when it originally came to a vote in the Senate in December. "It remains, in my view, a dark stain on our history and our values."
Several decades later, then-President Ronald Reagan apologized for internment, but the Nixon administration implicitly repudiated its legacy earlier by signing the Non-Detention Act of 1971, Feinstein said.
Modeled after that law, the Due Process Guarantee Act states that an "authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an act of Congress expressly authorizes such detention."
One challenger says, however, that the text of the bill actually reinforces, rather than overrides, the indefinite-detention provisions because of a loophole in the bill's final clause.
"The NDAA is an act of Congress," attorney Bruce Afran told Courthouse News in an interview.
"That's what happens with these laws," Afran said. "She writes it to appear to be challenging this law without actually doing so. ... So that does nothing. It actually validates the statutory structure."
Afran represents an activist group and six prominent critics of the NDAA who claim that they can be targeted for indefinite detention.
The plaintiffs include Pulitzer Prize-winning journalist Chris Hedges, Pentagon Papers source Daniel Ellsberg, Massachusetts Institute of Technology professor Noam Chomsky, Icelandic Parliamentarian Birgitta Jonsdottir and the New York-based activist group U.S. Day of Rage.
They claim the provisions of the NDAA are so broad that they can be interpreted as criminalizing even reporting the views of groups the U.S. government classifies as terrorists. Hedges, a former war correspondent, has reported on many such organizations in his travels throughout the Middle East. Chomsky, a harsh critic of U.S. foreign policy, has met with Hezbollah officials in Lebanon. Ellsberg and Jonsdottir believe their vocal support of Wikileaks might land them in indefinite detention should the U.S. government classify the anti-secrecy website as a terror group.
They are suing Obama, Defense Secretary Leon Panetta and Sens. John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell and Eric Cantor.
"As the case law makes clear, plaintiffs, facing the threat of indefinite detention, military trial and possible rendition to foreign jurisdictions by the sheer sweep of language of the act, face the choice between speech with such risk and diminishing their speech or remaining silent," according to a memorandum for preliminary injunction the group filed. "The very existence of this decided threat to their First Amendment activity in itself gives rise to irreparable harm."
Afran told Courthouse News that the Senate Judiciary Committee did not need to hearken back to World War II for an example of mass incarceration in the United States based on suspicion alone.
"In the immediate aftermath of the 9/11 attacks, thousands of Middle Easterners were rounded up," Afran said.
Al Franken, the former comedian turned junior senator from Minnesota, made the same point during the hearing.
Sen. Charles Grasley, R-Iowa, insisted that internment fears were unwarranted because U.S. citizens have not been swept up en masse since the Sept. 11 attacks.
Lorraine Bannai, a professor at Seattle University School of Law, argued that the danger was still there.
"No, we have not imprisoned innocent citizens en masse," Bannai said. "I would like to suggest we need not."
Bannai was part of the legal team in Korematsu v. United States, which overturned the conviction of a Japanese-American man for resisting internment nearly 40 years after the original decision.
Steven Bradbury, who helped write of the so-called "torture memos" during the Bush administration, was the only noncongressional witness to argue against the Due Process Guarantee Act at the hearing.
Franken said he was "tremendously disappointed" with Bradbury's inclusion, blasting the aide's legal justification of brutal interrogation techniques such as forced nudity, sleep deprivation and waterboarding.
Sen. Lindsey Graham, who co-wrote the NDAA, had the last words, and repeatedly asserted that the U.S. military's "battlefield" must now include the "homeland." He opposed efforts to uphold civilian due-process rights of U.S. citizens suspected of terrorism and claimed his position and that of Obama aligned.
"To the Obama administration, thanks for using both systems," Graham said, shortly before the hearing ended.
As the Senate Judiciary Committee hearing wound down Wednesday, U.S. District Judge Katherine Forrest in Manhattan set a March 29 hearing date for a preliminary injunction against the NDAA.
Despite reports that the bill would take effect 60 days after signing, or Thursday, Afran says the government saw its effect as immediate.