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The Indefinite Detention of Peoples Suspect of Involvement in Terrorism

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The Indefinite Detention of Peoples Suspect of Involvement in Terrorism
Ryan D. Fischer
Centennial High School

Abstract
In the latter parts of December 2011, the United States legislature passed the National Defense Authorization Act for Fiscal Year 2012 as a means of dictating the specific authorities and funding methods for the current fiscal year. Sections 1021 and 1022 of the act serve to further government authority with regard to the detaining and subsequent trial of those suspected of terrorism or related activities. While the aforementioned sections have not yet been abused at the hands of the state and are, in fact, largely effective in their ends, it stands a gross overstepping of government authority and disrupts the delicate balance between civil liberties and national security. Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 should thus be writ null and void so as to best preserve the freedoms and rights granted to each person, domestic or foreign.

Policy Identification
The National Defense Authorization Act for Fiscal Year 2012 (HR 1540) Title X Subsection D Sections 1021 and 1022 serves “to authorize appropriations for fiscal year 2012 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes…[specifically with regard to the detention of persons suspected of terrorism],” (112th Congress).
Signed into official United States Law on the fifth of January, 2012, the National Defense Authorization Act authorizes near to $662 billion in funding "for the defense of the United States and its interests abroad." The most controversial sections observed during the deliberation and aftermath of the act are (as specified above) the authorization of the detention of persons suspected by the government of being involved in acts of terrorism or holding membership in a terrorist organization as enunciated in sub-sections 1021 and 1022 (within Title X, Subtitle D, entitled "Counter-Terrorism,"). These have attracted the widespread disdain seen as a result of their possible legal interpretations and their propensity for abuse at the hands of the Executive Branch. While Authorization for Use of Military Force (AUMF) passed almost unanimously on September 18, 2011 grants this authority already, the NDAA furthers this authority by “affirming” the AUMF and granting additional specifications for the implementation and regulation said powers. The previously mentioned sections have garnered much controversy, especially within civil liberty watch-dog organizations such as the American Civil Liberties Union (ACLU) and similar groups (112th Congress).

History/Background
In the closing years of the 19th century the great powers of the world, including the United States and much of Europe, were confronted an unprecedentedly radical movement which centered on the idea of engaging in violent and illegal acts as a means of furthering a political agenda outside of the modes of conventional warfare. This movement, which later became known as terrorism, found its origins in Tsarist Russia where positivist intellectuals (mostly between sixteen and thirty) began engaging in a bloody campaign of bombings and assassinations aimed against both Czar Alexander II and the western conception of government. in a violent struggle against Alexander II, then czar of Russia. Drawing their inspiration and guidance from Nikolai Chernyshevsky's What Is To Be Done?, their fervent but relatively minute movement spread further across the scope of international politics.
Near the turn of the century the face of terrorism was beginning to shift (arguably as a direct resultant of the Nihilist movement) towards Anarchism. Auguste Vaillant, a French anarchist and nihilist, orchestrated what would become one of the most well know terrorist attacks of the Anarchist movement in a bomb attack on the French Chamber of Deputies (the French parliamentary chamber) On December 9th, 1893. In response, the French government passed the infamously repressive Lois Scélérates (wicked laws), the first legislation passed explicitly for anti-terrorism ends. The Lois Scélérates severely constrained freedom of expression and allowed for a myriad of extensive modes including the sweeping censorship of the press, the condemnation of all peoples in anyway associated with the act even if they were not directly involved, and the denouncement of any apology for a felony as a felony in its own right. (Bakunin)
As a result of increased anti-terrorist legislation in France (a trend followed by many European nations) the United Kingdom, with no set policies against such activities, soon became the final asylum for the politically ostracized, especially anarchists. At the height of reign of the Lois Scélérates between 1892 and 1895, Britain was haven for countless famous Anarchists including Louise Michel (also known as "the Red Virgin"), Émile Pouget, and Charles Matato, accompanied by hoards on anonymous Anarchist activists, deserters or simple criminals who took flight from other, less tolerant, European nations. Many political refugees returned to France after the holistic amnesty granted by President Félix Faure in February 1895. (Bakunin)
Though little in numbers, many of those involved in the kept its abode in the United Kingdom between the years of 1880 and 1914. Sanctuary for all sorts was a British convention since the the aftermath of the English Reformation in the 16th century but it slowly faded as French migrants were met with increasing resentment by the people s of Britain. A multitude of anti-immigrant campaigns were introduced into the British media in the 1890’s aiming to sway public opinion against the French Exilees. This concluded in extensive riots and even the creation of a "Restrictionist" party which pushed for the end of the UK’s laissez-faire anti-terrorist and foreign policy asylum policies.
Terrorism entered the scope of international policy in1934, when the relatively new League of Nations, precursor to the United Nations, commenced the creation of a code for the punishment and prevention of future terrorism. Although eventually adopted in 1937, the League’s convention never became enforced to any widespread or effective degree. ("Un action to")
The issue of terrorism in the United States was not a major concern until the iniquitous attacks at the World Trade Center and Pentagon on September 11th, 2011 which claimed almost 3,000 casualties. In response, on October 26th, 2001congress, passed the USA PATRIOT ACT (an acronym meaning “Uniting [and] Strengthening America [by] Providing Appropriate Tools Required [to] Intercept [and] Obstruct Terrorism Act of 2001”). The highly controversial USA PATRIOT Act (colloquially termed the "Patriot Act") substantially reduced the amount and extent of everyday freedoms among the American public and placed limits on law enforcement agencies' collecting of intelligence inside the ordained borders of the United States. In addition, the act expanded the Secretary of the Treasury’s jurisdiction regarding financial transactions of a myriad of sorts but particularly those of foreign nationals and, most notably, extended the allowance of judicial and immigration authorities in the arresting and subsequent deporting of immigrants and other non-citizens directly or indirectly suspected of activities related to terrorism. The act also redefined terrorism to include instances of domestic terrorism, thereby greatly increasing the number of activities to which the ends granted to law enforcement in the PATRIOT Act can be applied. (107th Congress, 2011)
Though it was set to expire in 2004, the PATRIOT Act was renewed several times, the latest of which occurring on May 26, 2011 when President Barack Obama authorized a four-year furthering of a few key provisions: the searching of business and library records, roving wiretaps (a surveillance technique in which multiple methods are used to prevent evasion), and the surveillance of individuals not associated with any established terrorist organization but which are, themselves, suspects of terrorism ("Fox news," 2011).
Current Situation
After signing the NDAAfy2012 into writ law on December 31st, President Barrack Obama issued an official statement regarding "certain provisions that regulate the detention, interrogation, and prosecution of terrorism suspects." In the announcement Obama asserted that "the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 Authorization for the Use of Military Force (AUMF). I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. [...] My Administration 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. [...] As my Administration has made clear, the only responsible way to combat the threat al-Qaida 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. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention,” (“Barack Obama,” 2011).
After the passing of the NDAA, multiple suggestions have been put forth both to clarify and further narrow the granted detainee authorities. One instance of this is H.R. 3676, a bill written and sponsored by Representative Jeff Landry of Louisiana that would modify the noted sections of the NDAAfy2012 to “specify that no U.S. citizen may be detained against his or her will without all the rights of due process." Similar legislation has been proposed in the U.S. House of Representatives and Senate (Thomas, 2011).
As the National Defense Authorization Act for Fiscal Year 2012 was passed in close proximity to the creation of this document little to no credible or pertinent information and statistics the current situation of this act and its implementation cannot be discussed. There are, however, many examples of international anti-terrorism legislation similar to this that can be analyzed to further the understanding of the NDAAfy2012 and its future execution.
A pinnacle example of this can be found in the Italian response to the Anni di Piombo (Years of Lead) in the 1970’s. The Years of Lead was a period in Italian history of widespread socio-political unrest for over twenty years in the latter parts of the twentieth century. This time period was made notable by an intense wave of terrorism colloquially referred to as Opposti Estremismi (Opposing Extremisms which was later changed to simply "Years of Lead.”
Social conflict was widespread and an unprecedented level of increasingly effective terrorist strikes was being conducted by left and right wing aggressive militaristic groups. In the 1960’s the imprudent attempt to assimilate the newly created Italian Social Movement (MSI), a neo-fascist political organization, into the Tambroni government of Italy ended in widespread rioting and was soon abandoned. From 1969 to 1981 over 2,000 murders were committed and credited to the unfortunate result of political turmoil. Among the causes of these deaths were unprejudiced bombings, assassinations of key political and social leaders and disdain between competing paramilitary groups. Since this time, the occurrence politically charged violence has fallen dramatically, but the committing of sporadic, unmediated crimes has risen, especially since the resurgence of militant neo-fascist and anarchist organizations ("Policy of law," 1981).
In response to ever increasing unrest in May of 1975 the Italian government set in motion as series of imposing anti-terrorism laws with the passage of the deeply controversial Legge Reale Act.
The Reale Act (as it became colloquially know) authorized judicial authorities to conduct searches and detain members of the general populace without express approval by a judge. Furthermore, the interrogation of the detained person could occur without the presence of a lawyer or advocacy whatsoever. Detractors from the bill contended that the provisions allowed were directly in opposition to Article 3 of the Italian constitution under the assurance of equality before the law ("Policy of law," 1981).
The Cossiga decree-law, a further expansion of Italian judicial authority, was enacted on December 15th, 1979. It extended the duration of detention with relation terrorism-related activities and granted the widespread usage wiretaps and similar surveillance technology. In addition, the law produced the title of Pentito, or “collaborators of justice.” Those under the auspices of Pentito were they who stood accused of terrorism and confessed fully. Often times these confessions were accompanied by the sharing of pertinent information by the accused to increase their chances of liberation. ("Policy of law," 1981). ("Nation master," )
Since the institution of such strident legislation there have been a reported 418 terrorist attacks (scale: 1980-2006) both foreign and domestic ranking it #17 in the world. Comparatively, the United States is ranked #14 with 548 reported attacks in the same time frame. Although no statistics could be found describing the state of affairs preceding the Years of Lead, every mentioning of the matter in pertinent sources implied that this rate was much higher before the passage of said legislation and that, as an inherent conclusion, the policies were effective in their intended purpose ("Nation master," ).
Differing Viewpoints
Sections 1021 and 1022, as previously mentioned, have attracted wide debate and controversy and have actually been labeled a direct negation of constitutionally guaranteed rights. The above mentioned sections of the NDAAfy2012 found strong opposition among the ranks of many watch-dog groups including the ACLU, Amnesty International, and the Council on American-Islamic Relations.
Citizens opposed to the legislation have campaigned (largely successfully) across the country using grassroots techniques to enact local resolutions articulating their strident opposition to it. The most successful campaigns have been conducted in Miami, New York City and San Diego, all of which passed legislation regarding the act in their spring legislative sessions (Kain, 2011).
In opposition to this viewpoint, that is that the NDAAfy2012 is unjust or otherwise injurious, stands the argument that the act is both a necessary solution to a pressing problem and is not that different from legislation and authorization.
Legal commentators have argued, however, that the NDAAfy2012 does not allow for actually "indefinite" detention due to the fact that detainees could only be held until the current conflict has been resolved. To substantiate this, they note the inherent difference between detention allowed under the “laws of war” (an informal allocation of various privileges for the purposes of wartime security) and the types of detention of domestic convention. For example, David Rivkin and Lee Casey (both constitutional lawyers in the DC metropolitan area) argue that the pertinent sections invoke "existing Supreme Court precedent . . . that clearly permits the military [and 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 echoes their belief that the United States is, due to the allowances of various pieces of national legislation (including but not limited to the AUMF and the 2001 USA PATRIOT Act), in a state of war with regard to al-Qaeda and related terrorist cells, and (as previously dictated) the apprehension of enemy militants stands in stark allowance under the established laws of war and is, in every way, authorized. They further their argument by stating that this in no way prevents subsequent trial in civilian courts but also does not mandate that the detainee in question be subsequently charged with a set offense and tried. However, if the subject is, in any way, a foreign militant who has in no way acted against the provisions of the laws of war they are not try-able under any set offense. Analysts who share this view stress the importance of the distinction between domestic penal law and the laws of war ("International committee of," 2011).
Similarly, the Bush Administration called upon not only the AUMF but also the innate authorities granted to him under Article II of the Constitution. Since this, the overstepping of executive power has been subjected to repeated judicial challenge, most often with regard to the Guantanamo habeas corpus debate. Such litigation has been met with a profoundly mixed reaction in all instances of detained within the borders of the United States though the courts have largely upheld the government’s position regarding persons captured abroad. In fact, the judicial circuit of the District of Columbia has espoused a working classification of those authorized to be detained under the text of the Authorization for the Use of Military Force and far broader in comparison to the loose definitions provided by the national government. While previously including those detained under “substantial germane support,” the D.C. Court Circuit has recently sanctioned a classification that would allow the apprehension of individuals that “purposefully and materially support” the forces of the opposition, regardless of degree or validity of evidence. (Chesney & Wittes, 2011)
Despite all prior argument, any law that denotes the administration’s success in the courts into official writ can’t be rationally said to further national authority regarding detention. Indeed, due to the increased specificity of the legislative language of the NDAAfy2012, it may actually further narrow the scope of detention, if only to a small degree. To demonstrate the similarities in the statutory language of the powers granted to the government within the AUMF to that within the NDAAfy2012:
(1: AUMF) “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” ("Authorization for use," 2001).
(2: NDAAfy2012) “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces,” (112th Congress).
They are close to identical. In essence, the NDAA is but a codification in established law of authorities existing already. It garners congressional approval behind said power for the first time but it, in no way, expands it. No persons who are not presently subject to apprehension will find themselves so under the auspices of the NDAAfy2012. (Chesney & Wittes, 2011)
The only instance in which it could be argued that the NDAA expands detention authorities is with regard to peoples held on the support of terrorist organizations rather than direct membership. So far, however, this has been the case exclusively in dicta and not in any case where guilt lay on the direct resolution of that issue. Thus, the courts (at any level) might, in some precedential instance, have ruled that support of a terrorist cell alone is insufficient in authorizing a detention. Because of its increased specificity, the text of the detention clauses within the NDAA will make certain that such is not an issue. As a possibly unintended result, the text of the NDAA detainment clauses ensures that future courts will not further narrow the scope of detainable peoples. (Chesney & Wittes, 2011)
Recommendation
It can therefore be concluded that Sections 1021 and 1022 are inherently effective in their goals, but, as previously enunciated, the controversy arises not in the specificity of the power, but in what is objectively an equitable compromise between defense and civil liberties. As this barrier is, by its very nature, subjective to the beliefs of each individual person, no true line can be drawn that best remedies it but it is clear that the authorities granted to the Department of Defense and associated agencies within the aforementioned legislation are a vast overstatement of federal authority. As such, it is my recommendation that Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 as well as the detention clauses within the Authorization for the Use of Military Force be writ null and void and removed from the text of the bill. In addition, as the supporting legislation has now been rebuked it is my further recommendation that all parties upon which the allowances granted in the act have been carried out be released and (as needed) compensated. This would not be the case if said parties may still be detained under alternative and independent legislation. The economic feasibility of such action would be almost holistically non-invasive and in some ways even beneficial to our current state. The only economic costs would be the administrative fees associated with its execution and the possible compensation packages offered to those unjustly detained. Far outweighing these are the vast savings that will be obtained by the elimination of missions and sub-agencies associated with the act. From a political viewpoint, this plan would be met with moderate resistance from the authoritarian and defense oriented sects of the conservative populace but would be met with much agreement in the bulk of America, especially in Libertarian and civil rights-oriented parties. This plan must be implemented as soon as possible so as to avoid its abuse and unjust use on citizens and foreign nationals.

Works Cited
H.R. 1540--112th Congress: National Defense Authorization Act for Fiscal Year 2012. (2011). In GovTrack.us (database of federal legislation). Retrieved January 26, 2012, from http://www.govtrack.us/congress/bill.xpd?bill=h112-1540
112th congress, 1. S. (n.d.). Retrieved from website: http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf
Gibson, C. (May). Retrieved from http://www.ng.mil/ll/analysisdocs/FY2012/House Report 112-74.pdf
Valiant auguste. In (2008). The Anarchist Encyclopedia (1 ed.). Retrieved from http://recollectionbooks.com/bleed/Encyclopedia/VaillantAuguste.htm
107th Congress. (2011, September 01). Government printing office. Retrieved from http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf
Epic.org-electronic privacy information center. (2010). Retrieved from http://epic.org/privacy/terrorism/usapatriot/
Un action to counter terrorism. (n.d.). Retrieved from http://www.un.org/terrorism/instruments.shtml
Bakunin, M. (n.d.). Marxists.org. Retrieved from http://marxists.org/reference/archive/bakunin/works/1870/letter-frenchman.htm
(2011, May 27). Fox news. (2011). [0]. Retrieved from http://www.foxnews.com/politics/2011/05/27/senate-clearing-way-extend-patriot-act/|date/
McGreal, C., "Military given go-ahead to detain US terrorist suspects without trial", The Guardian, 14 December 2011
Parvaz, D., "US lawmakers legalise indefinite detention", Al Jazeera, 16 December 2011
Kramnik, Ilya "New US Defense Act curtails liberties not military spending," Voice of Russia, 28 December 2011
Kain, E. D. (2011, 12 5). Forbes. Retrieved from http://www.forbes.com/sites/erikkain/2011/12/05/the-national-defense-authorization-act-is-the-greatest-threat-to-civil-liberties-americans-face/
"Barack Obama: Statement on Signing the National Defense Authorization Act for Fiscal Year 2012". John T. Woolley and Gerhard Peters, The American Presidency Project [online]. December 31,2011. http://www.presidency.ucsb.edu/ws/index.php?pid=98513&st=&st1=#axzz1iE5qy7a3. Retrieved 2012-17-01.
Serwer, A. (2011, December 16). "the defense bill passed. so what does it do?". Retrieved from http://motherjones.com/mojo/2011/12/defense-bill-passed-so-what-does-it-do-ndaa
Mariner, J. (2012, 01 02). The ndaa explained [Web log message]. Retrieved from http://verdict.justia.com/2012/01/02/the-ndaa-explained
International committee of the red cross resource center. (2011, January 01). Retrieved from http://www.icrc.org/eng/resources/documents/misc/terrorism-ihl-210705.htm
"President Obama Signs Indefinite Detention Bill Into Law," ACLU, 31 December 2011
Thomas, A. (2011, Deceber 15). Bill summary and status. Retrieved from http://thomas.loc.gov/cgi-bin/bdquery/z?d112:H.R.3676:@@@D&summ2=m&
Chesney, R., & Wittes, B. (2011, Dec 19). Lawfare. Retrieved from http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/
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