Indefinite Detention and the NDAA: The rise of America’s imperial presidency

Can government lock you up and throw away the key – without a trial? Danny de Gracia finds out in this in-depth interview with the Tenth Amendment Center. Photo: AP File Photo

HONOLULU, December 7, 2012 – In the eleven years since the terrorist attacks on 9/11, America has effectively lived under a perpetual state of emergency. Last year, President Barack Obama while vacationing in Hawaii signed the 2012 National Defense Authorization Act which included an embedded provision allowing the presidency what some have termed as indefinite detention powers.

The political firestorm and continuing controversy over both the Global War on Terror and the NDAA has led many American citizens to wonder just what all of this means for their individual freedom. Though the Senate just recently passed the 2013 National Defense Authorization Act along with a provision allegedly protecting American citizens from indefinite detention, many legal experts say not so fast and worry the NDAA might be worse in its current proposed form.

To find out just what exactly the NDAA is and isn’t, I sought out the Tenth Amendment Center’s Blake Filippi who recently authored a column on the Feinstein Amendment. In our interview, I was shocked to learn that the erosion of civil rights and Constitutional protections under both the NDAA and other recent mandates was much worse than many of us had initially thought. Here now is a transcript, with minor edits for clarity.


Danny de Gracia: A lot of our readers out there aren’t familiar with what exactly the NDAA does or how it potentially impacts the way U.S. citizens will be treated by law enforcement or by intelligence agencies. Could you tell us for clarification what the current, status quo framework does and what it means in terms of the big picture for the average American?

Blake Filippi: It is a pleasure, Danny. I’m glad you all facilitate discussion of this most important topic. The short of it is that the USA has essentially been declared an active war zone with regard to allegations of supporting terrorism; where our most fundamental constitutional rights are undercut. What this means is that the President has been granted powers over the domestic citizenry that are normally reserved for active battlefields. To understand why this is so complex, please bear with me.

The current status quo is pursuant to the 2012 NDAA and the 2001 Authorization to Use Military Force because the 2013 NDAA has not been enacted yet. Since the 2001 AUMF, the Executive branch, under both administrations, has contended its War Powers include authority to indefinitely detain as enemy combatants, without charge or trial, all persons within the United States, including citizens.

Our Supreme Court has not ruled post- 9/11 whether persons captured in the USA may be indefinitely held as enemy combatants.  Then Congress passed the 2012 NDAA, which legislatively authorized the Executive’s professed domestic war powers, and then some.

Section 1021 provides the President with the authority to designate all persons – including citizens captured within the USA – as enemy combatants, whom the President unilaterally determines “substantially supported” Al-Qaeda, the Taliban, or “Associated Forces.”

Section 1021 is subject to abuse because the vague “substantial support” and “associated forces” are undefined. Importantly, Section 1021 does not require one’s substantial support to be knowing and willful.

Theoretically, under section 1021, the Florida flight school trainers of the 9/11 hijackers, a fertilizer dealer whose fertilizer is used in a terrorist’s bomb, and someone who unwittingly donates to a charity that funnels that money to terrorists, all may be designated as enemy combatants under the 2012 NDAA.

Of utmost importance is that section 1021 of the 2012 NDAA authorizes the “armed forces to detain [such] covered persons” pending disposition by the President according to the Law of War. Thus, the armed forces are purportedly authorized to detain all persons within the USA; an implicit and wholesale repeal of posse comitatus, the post-reconstruction ban on the military exercising a police function over the domestic civilian population.

Over the past year, we have since seen an expansion of military activities within the civilian population. Domestic military police are a dangerous proposition for our Constitutional Republic.

Section 1021 then expressly provides that the President may then dispose of such covered persons according to the Law of War, including indefinite detention without charge or trial, military tribunals and extraordinary rendition (the act of disappearing someone out of the country to a foreign government or entity). Such treatment violates a litany of fundamental rights enshrined in the Constitution’s 1st, 4th, 5th, 6th, 8th and 14th Amendments.

The NDAA has given President Obama extremely broad dispensation in handling persons accused of involvement with terrorism. (AP file photo)

While the Supreme Court has somewhat restricted the President’s authority to indefinitely detain persons within U.S. jurisdiction – those limitations are inadequate. Our Supreme Court has ruled that continued indefinite detention is acceptable so long as the President, in the detained’s habeas corpus petition, proves by a preponderance of the evidence – which is substantially less than beyond a reasonable doubt – that one substantially supported terrorist organizations.

Hearsay is admissible; i.e. one does not possess the 6th Amendment right to confront accusers. And, no jury trial is available. The effect of the 2012 NDAA is that it applies these limited due process rights to all persons within the USA whom the President desires to indefinitely detain.

Moreover, there have not been any post-9/11 Court cases to limit the President’s ability to hold military tribunals and conduct extraordinary rendition against all persons within the U.S; which are specifically authorized by the 2012 NDAA.

Recently, there has been much hoopla about the Feinstein Amendment, as part of negotiations over the 2013 NDAA, purporting to fix the problems with 2012 NDAA. The Feinstein Amendment says that citizens and legal resident aliens within the U.S. jurisdiction may not be indefinitely detained unless “expressly authorized” by an Act of Congress.

The main problem with the Feinstein Amendment is that its required express authorization has already been passed in the 2012 NDAA. Yet, some politicians and commentators have stated that the Feinstein Amendment does fix the indefinite detention problems because the 2012 NDAA really does not provide the express authorization.

I encourage all readers to examine 2012 NDAA sections 1021 and 1022 for themselves to determine whether indefinite detention is expressly authorized, or not. It certainly appears so. If indefinite detention were is not expressly authorized in the 2012 NDAA, why would we need the Feinstein Amendment fix in the first place?

The important thing is that, at best, the Feinstein Amendment and the 2012 NDAA are vague. Lawyers from all over the political spectrum disagree about whether the Feinstein Amendment limits the President’s indefinite detention powers over citizens and legal resident aliens.

What interpretation do you think the President will adopt? The least restrictive interpretation that continues the Executive’s broad purported authority to indefinitely detain all persons! And it will be years before the Supreme Court interprets the Feinstein Amendment to limit that authority, if it hears the case at all.

Your readers should take note that our Supreme Court has had two opportunities to decide – in the Jose Padilla case – whether the President possess the authority to indefinitely detain citizens captured within the USA pursuant to the 2001 AUMF. Instead of answering this most important Constitutional question, the Court used procedural issues to deny review that could have limited the President’s professed powers over the domestic population.

Let’s hypothetically say the President does accept the most restrictive interpretation of the Feinstein Amendment and the 2012 NDAA and that he may not indefinitely detain citizens and legal resident aliens. What will our country look like? First, the military is still implicitly authorized to exercise a domestic policing function. Military tribunals and extraordinary rendition remain for everyone.

And critically, visitors, temporary residents and undocumented aliens will still be subject to indefinite detention. We will have to prove our citizenship or legal permanent residence in order to be ensured that we will not be subject to indefinite detention. Wasn’t it this “show your papers” mentality that made Donald Trump’s challenge to President Obama’s eligibility so objectionable? Well, at best, the Feinstein Amendment just established two very different “justice” systems based on one’s papers – that they better have close at hand.

9/11 has caused a paradigm shift in U.S. policymaking to view nearly everything through the lens of fighting a global war on terrorism. (U.S. Air Force file photo)

DDG: It seems to me that there is a confusion going on right now in our government as to whether terrorism is a crime to be punished or an act of war against the United States of America. I think that crime and punishment and warfare with nations or nonstate actors are two distinctly different and very separate legal concepts and when Congress blurs the two together into this kind of strange, hybrid policy we get into dangerous territory. What do you think?

Filippi: You are right on numerous fronts. Of course we must fight international terrorism. And I don’t believe our Presidents have limited themselves in fighting the War on Terror abroad. We currently have active drone warfare ongoing in at least five countries. Some would say those campaigns are ongoing without sufficient Congressional authorization, but that is not part of your question.

I believe that when war comes home – when allegations of domestic terrorism are used to deny fundamental Constitutional rights – our Constitutional Republic faces the biggest difficulties. For instance, Article II Section 9 requires that Congress suspend the writ of habeas corpus for indefinite detention to be legal. That has not occurred. Yet, Congress still purports to imbue the President with the authority for domestic indefinite detention. What good is the Constitution if Congress and the President purport to be above it?

We must remember that our civilian justice system has put away numerous terrorists since 9/11, all the while preserving the defendants Constitutional rights. In fact, I can’t think of one example where a terrorist has “gotten off” in our civilian justice system. If the civilian justice system works, even with all the attendant protections for the defendant, then why is Congress so quick to abandon it and severely limit our Constitutional protections?

As an aside: Congress does its esteem no favors when it purports to abandon the civilian justice system and circumscribe our Constitutional rights without a suspension of the writ of habeas corpus, and without a declaration of war, but does so with a provision buried in the multi-hundred-page NDAA appropriations bill. 

To specifically answer your question: the nature of terrorism is that it blurs the line between crimes and acts of war. Thus, we must establish a bright line in the sand; on one side are all the protections of the Constitution, and on the other is the Law of War. If that line is anywhere but the borders of our nation – if we subordinate domestic civilian law to military law by giving the President the discretion to determine who within our borders is entitled to fundamental Constitutional protections – our Constitution will be undermined to an untenable point. Of course we can all think of examples where this bright line rule could enable a terrorist to “get off,” but I believe that hypothetical pales in comparison to the likelihood that our Constitution and the equal rule of law will be permanently undermined.

Just as the first amendment was intended to protect popular speech, our Constitution was written for when times are hard, and fear compels us to give up liberty for perceived security. Our founders instructed us to be strong and to stand up for our rights despite the obstacles.  Otherwise we will lose both liberty and security.

DDG: The Tenth Amendment Center stirred up quite a bit of controversy last week by saying that the Feinstein Amendment basically was worthless and even to some extent effectively legitimized the NDAA. Obviously Congress has to have armies of staffers and legislative analysts reading these bills and coming to the same conclusion but apparently that didn’t happen in a way that got us an amendment that actually made a difference. 

I myself worked in a state legislature for many years and as the senior committee staffer, whenever something was referred to me or an amendment came up that made things worse, I always stopped to tell the chair, “Hey, this isn’t what you want, the law says such-and-such and this is going to be a problem.” We didn’t see that in Congress with Feinstein’s Amendment and they’re supposedly leaps and bounds more sharp than the rest of us country mice. Why did this happen? What exactly is going on here?

Filippi: I don’t question individuals’ underlying motivations. As for the Senate-collective, at best the Feinstein Amendment was passed as the “most we can get.” At worst it serves as a smokescreen that unjustifiably allays concerns over the President’s domestic War Powers. The fact is that it is not drafted properly and leaves many issues unresolved, which is highly inappropriate when dealing with these grand issues.

DDG: Anyone who takes a high school civics class is taught the purpose of the Supreme Court is to check the two other branches and strike down unconstitutional mandates. So far it doesn’t seem like they’re moved by NDAA or a whole host of other mandates out there that common sense would scream out as being unconstitutional. Any thoughts on this?

Filippi: Our Supreme Court has been reluctant to limit Executive War Powers since 9/11 and has avoided ruling on whether citizens captured within the USA may be indefinitely detained.

On two separate occasions, Jose Padilla, a U.S. citizen captured in the USA and indefinitely detained, was denied a hearing before the Supreme Court on procedural technicalities. First, after working its way through the Second Circuit, the Supreme Court denied review on the grounds that Padilla’s petition should have been filed within the Fourth Circuit. Then, after winding itself through the Fourth Circuit – and after the Bush administration received a favorable decision from the Fourth Circuit Court of Appeals – on the eve of Supreme Court review, Padilla was transferred to the Civilian Court system. The Supreme denied review on the grounds that Padilla was no longer in military custody, and thus, the question of whether a citizen captured in the USA can be indefinitely detained was no longer justiciable. So, the question remains.

In defense of the Supreme Court, it has ruled in the Hamdi and Boumediene cases that those persons indefinitely detained have some due process rights. Unfortunately, those rights are strikingly limited compared to normal civilian criminal proceedings.

Unfortunately, our Courts have apparently adopted a policy of undue deference to the Congress and the President since 9/11, one that has denied necessary rulings the president’s war powers versus our fundamental Constitutional rights.

DDG: My last question is this: why is it we are seeing a trend towards less freedom and more lockdowns against civil liberties across the board? How hard can it possibly be to just work with the Constitution, obey the rules and stay within limits?

Filippi: Our current predicament is the people’s fault. Many have been uninvolved and apathetic. There are many famous quotes to support this proposition. “The price of freedom is eternal vigilance.” “All that is necessary for evil to triumph is for good men (and women) to do nothing.” The people have allowed their Constitution to be undermined to the point that it is now merely an obstacle to be overcome by fancy language in a piece of legislation.

The essence of the Constitution is for it to be a limit on Government and a vehicle to preserve individual freedom. To that end, Constitutional grants of government authority should be strictly construed and legislation empowering government should be presumed unconstitutional. While on the other hand, the rights of the people should be broadly construed to persevere the most individual liberty. Unfortunately, the system is reversed.

In tandem with the peoples’ failure to hold their government to the Constitution, the Courts now broadly construes grants of Government authority, and for the most part strictly construe our rights under that same Constitution. In order to fix this dilemma, the people must deeply reengage with the political process and the Courts must return to a form of review that limits government authority and maximizes individual liberty.

I leave with a quote by Ben Franklin: “Rebellion to Tyrants is Obedience to God.” 


We greatly appreciate Mr. Filippi and the Tenth Amendment Center for this interview.

This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

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Danny de Gracia

Dr. Danny de Gracia is a political scientist and a former senior adviser to the Human Services and International Affairs committees at the Hawaii State Legislature. From 2011-2013 he served as an elected municipal board member in Waipahu. As an expert in international relations theory, military policy, political psychology and economics, Danny has advised numerous policymakers and elected officials and his opinions have been featured worldwide. Now working on his first novel, Danny resides on the island of Oahu.

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