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The home front

February 7, 2012

Osama bin Laden is dead, but Washington’s War on Terrorism continues to rage in the hearts and minds of many Americans. New counterterrorism provisions raise the specter of mandatory military detention in the US.

US flag, barbwire
The US has increasingly become part of the battlefieldImage: AP

Ten years into America's self-declared War on Terrorism, the US government is still struggling to clearly delineate the legal and geographic boundaries of its fight against a globalized and ruthless non-state adversary. In the process, it has raised concerns among rights groups that Washington has fallen into a self-defeating thought paradigm, which could lead to the expansion of military law in the very homeland whose democratic institutions the federal government has sworn to defend.

In the latest round of political wrangling over the dimensions of America's war, Congress passed and President Barack Obama signed the 2012 National Defense Authorization Act (NDAA) just before the New Year, a law that appropriates $662 billion (519 billion euros) in defense spending.

But it was the NDAA's counterterrorism provisions regarding the military detention of suspected al Qaeda members that sparked a fury of debate in the US over whether the conflict abroad must now be fought with the military at home.

Mandatory detention

Section 1021 of the law reaffirms the executive branch's authority to detain any person who was a "part of or substantially supported al Qaeda, the Taliban or associated forces." Section 1022 requires that suspected members of al Qaeda or an associated force, even those captured on US soil, be held in military custody until a decision is made as to whether they will face a legal proceeding or simply be detained without trial until the end of hostilities.

This provision does not extend to US citizens and lawful resident aliens. And the president has the option to waive Section 1022's detention requirement if he or she believes it is in the national security interests of the US.

prisoners at guantanamo
The executive has long claimed the authority to detain enemy combatants without trialImage: picture-alliance/dpa

But an early Senate draft of the legislation contained convoluted language that seemed to allow American citizens arrested on US soil under suspicion of being al Qaeda members to be held in military custody, but only to the extent permitted by the constitution.

In response, Senator Mark Udall introduced an amendment that would have removed the controversial provisions. His amendment failed, and Senator Dianne Feinstein subsequently introduced a successful compromise measure essentially stating that the NDAA would in no way impact the status quo regarding detention and US citizens.

Status quo ante

So although the current law does not broaden the executive branch's authority and permit the detention of US citizens by the military on American soil, it also does not explicitly deny this authority, essentially leaving the issue unsettled. 

"The final result was to say that no one is touching this issue, we're expressing no opinions on it," Robert Chesney, an expert on national security of law at the University of Texas School of Law, told Deutsche Welle.

Congress may have kicked the can down the road this time around, but senators such as Lindsey Graham, Carl Levin and John McCain maintain that - according to their interpretation of existing law - the authority to detain US citizens on American soil already exists.

"Obviously it's not the case that everyone in Congress affirmatively wants to deny this authority," Chesney said. "They clearly don't because that option was put before them and they voted it down. It did not get voted through - that strongly implies that at least some substantial number of senators do in fact want there to be this detention authority."

Osama bin Laden
The War on Terror has continued after the death of Osama bin LadenImage: picture-alliance/dpa

Law of war

Chesney, however, believes that the unsettled question of whether or not the executive branch can indefinitely detain US citizens in military custody is "beside the point" since "almost none" of the government's activity relating to al Qaeda, the Taliban and associated forces is likely to involve citizens.

Ultimately, the real bone of contention between supporters and critics of the War on Terrorism boils down to whether or not America is in fact fighting an international armed conflict against al Qaeda.

"If you start from the premise that you have a real armed conflict, then premise one is that there's a category of enemy soldiers that you can detain for the duration of hostilities," Chesney said. "The second premise is the fact that you're a citizen doesn't matter if you're in the enemy army."

Stateless enemy

Under the law of war which governs international armed conflict, the executive branch always had the authority to detain US citizens who are fighting with the enemy, according to Tom Parker, an expert on terrorism and human rights with Amnesty International USA.

September 11, 2001 World Trade Center attacks
America viewed the September 11 attacks as an act of warImage: AP

Parker, however, argues that while September 11 was an "appalling criminal act," no nation other than the US views the fight against al Qaeda as an international armed conflict because "19 guys with box cutters who don't represent anybody but themselves and a small gang of cohorts living in a cave in Afghanistan cannot commit an act of war unless a country is behind it."

"Anybody that has ever bothered to study international law has said you can't fight a war between a state and non-state actor," Parker told Deutsche Welle. "Al Qaeda isn't a state, it isn't a country, it's not a signatory to any of these conventions so you can't fight an international armed conflict against it."

Battlefield America

For Parker, the problem with the NDAA does not lie so much in its reaffirmation of the executive branch's authority to detain enemy combatants during a time of war, which is a well established and uncontroversial principle of the law of war.

Rather, he worries that requiring al Qaeda suspects to be held in military custody will further institutionalize the War on Terrorism in American domestic law.  

Anwar al Awlaki
The Obama administration assassinated US citizen Anwar al Awlaki, an alleged al Qaeda operative, without trial in Yemen last yearImage: dapd

"The more you entrench that the more the logic spills over into the domestic justice system and then you have two streams of law operating on US soil, normal civil American law and international law, the law of armed conflict," Parker said. 

War without borders

The original congressional authorization to use force in response to the September 11 attacks lacked clarity regarding the geographic scope - the precise location - of the battlefield. As a result, the US has publicly expanded its operations from Afghanistan to now include Pakistan, Somalia and Yemen as al Qaeda and its various affiliates migrate around the globe.

Chesney noted that the official position of Washington draws a clear distinction between failed states, whose governments have problems controlling their own territory, and states that can meet their responsibility to address threats within their own sovereign borders.

Yet with few explicitly defined geographic boundaries, the scope of the conflict continues to expand. And as so-called homegrown terrorism becomes an important priority on the national security agenda, elected officials like Senator Lindsey Graham have designated "the world as the battlefield, including the homeland."

President Obama, in an executive signing statement after signing the NDAA into law, voiced reservations with this expansive view of the struggle against al Qaeda when he said he would not authorize the indefinite military detention of American citizens without trial.

But whether or not President Obama will keep his word and what position a future administration will take are both open questions.  

"If and when the executive branch decides to interpret its existing authority to include citizens, there will be litigation and the courts will weigh in on whether it is proper," Chesney said.

Author: Spencer Kimball
Editor: Rob Mudge