Obama Approves Bill Allowing Imprisonment Without Trial

On New Year's Eve, a day when political news is almost annually thrown under the bus, President Obama signed into law the National Defense Authorization Act of 2012 (NDAA), a law that threatens the basic civil rights guaranteed by the United States Constitution and could potentially turn the United States into a whole new front in the war on terror.

The NDAA has been passed every year since 1963 to provide funding for the Defense Department, but this year's edition contains a contentious provision that could allow the Executive Branch to imprison American citizens without due cause, a right to a lawyer or even the guarantee of a trial. In section 1021, the part of the law that has generated the most controversy, the law states that "Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons."

A covered person is defined not only as someone who planned, aided or participated in the 9/11 attacks, but anyone "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 anyone who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

Obama released a statement after signing the bill, which he threatened to veto until last minute amendments were made. "The fact that I support this bill as a whole does not mean I agree with everything in it," he clarified. "In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists… I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens."

The bill, which was sponsored by Senators John McCain and Carl Levin, has been criticized for the unclear language it contains, which makes it open for misuse. While containing a provision that states that "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens," the Non-Detention Act of 1971 presents an "existing law" that legally allows a United States citizen to be held without trial if "an Act of Congress expressly authorizes such detention."

In response to the passing of the law, Senator Dianne Feinstein has proposed a bill that would amend the Non-Detention Act and guarantee the right to trial for American citizens and legal aliens. The Due Process Guarantee Act of 2011 (DPGA) has received bipartisan support, with three Republican and nine Democratic Cosponsors, and if President Obama's signing statement carries any credibility, it's likely to be made into law.

"The beauty of our Constitution is that it gives every citizen the basic due process right to a trial on their charges," Feinstein, who voted for the NDAA, said of her proposed bill. "I strongly believe that Constitutional due process requires U.S. citizens apprehended in the U.S. should never be held in indefinite detention. And that is what this new legislation would accomplish."

The DPGA is still in committee, where it will be debated and amended at both the House and Senate levels and is scheduled to come to a vote.