Infrastructure of Tyranny--Indefinite Detention without Trial

In the first part of this survey of what Conor Friedersdorf has called the "infrastructure of tyranny,"  we looked at the practice of extraordinary rendition, which is basically the art of making people disappear.  In the second part of this survey, we looked at black site prisons, or where people have been disappeared to.  In the third part of the series, we looked at secret detention, or simply not acknowledging that a person is in your hands.  In the fourth part, we'll look at indefinite detention without trial, also known in some circles as "locking them up and throwing away the key."

There are people being indefinitely detained in Guantanamo Bay right now.  Excerpts:

The US Government has for the first time released the identities of 46 terror suspects being held at Guantánamo Bay as “indefinite detainees” — men considered too dangerous to transfer from the jail but ineligible for trial because of insufficient or tainted evidence...

Indefinite detention of American citizens is not impossible, especially in light of the National Defense Authorization Act (NDAA) brouhaha in 2012, the willingness of a number of senators to include language in the bill which would authorize the federal government to indefinitely detain US citizens without recourse to a trial, and the concatenation of events laid out in this series.  The proposed Senate language (which was rejected):

"Offered to the National Defense Authorization Act for Fiscal 2012 (S.1867), amendment No. 1274 would have allowed the U.S. government to detain an American citizen indefinitely, even after they had been tried and found not guilty, until Congress declares an end to the war on terror."

Sponsored by Senator Jeff Sessions of Alabama. Voted for by 41 members of the US Senate, including two Democrats, one Independent, and the rest Republicans.

Some would say it's already happened.  Excerpts:

...The threat that the U.S. government would detain indefinitely — or even kill — an American citizen without formal charges or judicial proceeding is hardly theoretical. The appellate court that struck down the injunction acknowledged that fact:

Presidents Bush and Obama have asserted the right to place certain individuals in military detention, without trial, in furtherance of their authorized use of force. That is, whom did Congress authorize the President to detain when it passed the AUMF [Authorization for the Use of Military Force]? On December 31, 2011, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2012. Section 1021 of that statute, which fits on a single page, is Congress’ first — and, to date, only — foray into providing further clarity on that question. Of particular importance for our purposes, Section 1021(b)(2) appears to permit the President to detain anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces.

Both President Obama and George W. Bush have authorized the detention or killing of American citizens without any due process.

U.S. citizen Anwar al-Awlaki had been deemed a terrorist by the Obama administration for essentially maintaining a YouTube site that called for attacks against Americans from Awlaki's Yemeni home. Awlaki — an American citizen — was later killed in a September 30, 2011 drone strike authorized by President Obama but without any judicial proceeding. No evidence of his actual involvement in any terrorist incident was ever made public, and no charges were ever brought in any court against Awlaki. Two weeks later Awlaki's Colorado-born 16-year-old son, Abdulrahman, was killed in a separate drone strike authorized by the president. And President Obama is widely known to have a “kill list” that includes American citizens.

President Bush detained at least four American citizens without trial: U.S. Navy Veteran Donald Vance, Nathan Ertel, Yaser Hamdi, and Jose Padilla. Although Vance and Ertel were released after a few months of torture (they were innocent), the Bush administration fought giving Hamdi and Padilla a trial — and even a habeas corpus hearing — all the way to the U.S. Supreme Court.

Court challenges to the NDAA passed in 2012 have recently failed.  Excerpts:

...When Hedges, a war correspondent who has interviewed members of al-Qaida and the Taliban, first filed his lawsuit in January 2012, he suggested Section 1021 of the NDAA could have a chilling effect on the First Amendment, which protects free speech and freedom of the press.

The Pulitzer Prize winner reacted to the Appeals Court decision with disdain.

“It means there is no recourse now either within the executive, legislative or judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights,” Hedges said in a statement to TruthDig, where he is a columnist.

He suggested the NDAA has helped blur the lines between domestic policing and military counter-terrorism operations.

“It means that the state can use the military, overturning over two centuries of domestic law, to use troops on the streets to seize U.S. citizens, strip them of due process and hold them indefinitely in military detention centers,” he wrote...

After the September 11, 2001, terrorist attacks, the U.S. passed a series of laws to give law enforcement agencies greater ability to gather intelligence on, and take action against, alleged terrorist threats. The National Defense Authorization Act, which outlines the Defense Department budget and spending plan, is part of that effort.

President Barack Obama signed the act in 2012, he said, “with serious reservations” about provisions related to the treatment of terrorism suspects held at Guantanamo Bay. At the signing, he also addressed concerns about the treatment of U.S. citizens.

“My Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation,” he said. “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.”

The U.S. government has not said whether it has held any U.S. citizen under section 1021 of the NDAA...

More on the decision.  Excerpts:

..."We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were 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—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all," Judge Lewis Kaplan wrote on behalf of Judges Amalya Kearse and Raymond Lohier...

The President has more recently signed a new version of the NDAA in 2013.  Salon has more.  Excerpts:

...This year, the same provisions over which he was so reserved remain in the 2013 version of the bill, along with a number of brand-new problematic amendments. The president threatened a veto on the new bill’s prohibitions on closing Guantánamo Bay detention center. But he didn’t veto; he signed the bill again on Thursday.

Once again, Obama expressed his misgivings in a signing statement, but stressed that “the need to renew critical defense authorities and funding was too great” to reject the bill, which approved a $633 billion armed forces budget for the 2013 fiscal year. Also approved in the NDAA are controversial provisions that will likely make closing Guantánamo Bay detention center impossible in Obama’s presidency, and provisions elsewhere in the act that allow for the indefinite military detention of U.S. citizens.

“It’s the second time that the president has promised to veto a piece of a very controversial national security legislation only to sign it,” said Shahid Buttar, executive director of the Bill of Rights Defense Committee, according to HuffPo. “He has a habit of promising resistance to national security initiatives that he ultimately ends up supporting and enabling...

Despite stating last year that his administration “worked tirelessly to reform or remove the provisions” relating to indefinite detention of U.S. citizens, Obama’s attorneys this year quashed federal injunctions made against these provisions as the result of an ongoing lawsuit brought against the president by Pulitzer Prize winner Chris Hedges, Daniel Ellsberg and six other plaintiffs including Noam Chomsky and Naomi Wolf. The president’s signing statement Thursday unsurprisingly made no such mention of tireless work to remove the controversial provisions...

More on the new NDAA.

Given the existence of secret detention, it would be difficult if not impossible to determine where or not the US is currently detaining any citizens indefinitely, where they are, how they are being treated, and whether or not they are in fact guilty of those acts for which they are being held.  Even if only non-citizens were indefinitely detained, the US would still be in breach of fundamental principles of human rights and due process of law.