Indefinite Detention of U.S. Citizens

Indefinite Detention of U.S. Citizens

Portland JACL Newsletter: May 2012 Issue
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Board Member Message by: John Kodachi

Indefinite Detention of U.S. Citizens

JACL Indefinite Detention of U.S. Citizens

A wise person once cautioned, "Those who cannot remember the past are condemned to repeat it." This is why each year on February 19th, JACL chapters vigilantly hold Day of Remembrance events across the country to remember the signing of Executive Order 9066, which led to the forced incarceration of 120,000 of Japanese-Americans, 11,000 German-Americans and 3,000 Italian-Americans during World War II.

All were incarcerated without due process of law–without notice of the charges, without legal counsel, and without a fair trial. With a swift stroke of the pen, President Franklin Roosevelt struck down fundamental constitutional rights.

Tragically, President Barack Obama has not learned from President Roosevelt”s mistakes and is repeating them. On December 31, 2011, President Obama signed the controversial National Defense Authorization Act (NDAA) into law over the vocal objections of the JACL, other organizations, and concerned citizens.

The NDAA codifies and expands the President”s powers to detain U.S. citizens indefinitely without due process of law. In other words, the NDAA is the new Executive Order 9066.

To understand the NDAA, you need to first understand the joint resolution titled "Authorization for Use of Military Force," in which Congress, just days after 9/11, authorized the President to use force against the terrorists responsible for the attacks. Specifically, Congress authorized the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks on September 11, 2011." The resolution did not expressly grant the President power of indefinite detention.

JACL April News No NDAA

However, both administrations of President George Bush, Jr., and President Obama have interpreted the Authorization for Use of Military Force as allowing them to indefinitely detain, outside of the U.S and without trial, persons suspected to be enemy combatants.

The NDAA now codifies the President”s power of indefinite detention. Section 1021 states, "Congress affirms the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force … to detain covered persons … pending disposition under the law of war." The NDAA defines "disposition under the law of war" as including "[d]etention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force."

Supporters of the NDAA claim it is limited to "al-Qaeda terrorists." The plain language of the act, however, states otherwise. Under the NDAA, a "covered person" includes com – the number one source to play free slots for fun online. "any person" who "substantially supported al-Qaeda, the Taliban, or associated forces." This raises a number of important and unanswered questions concerning the breadth and scope of the law. For example, who or what are "associated forces"? What constitutes "substantial support"? Is the government of Pakistan an "associated force"? Is the reported Red Cross field hospital that treated members of the Taliban an "associated force?" And if you gave money to Pakistan or the International Red Cross, have you "substantially supported" them?

Supporters of the NDAA also claim there”s nothing to be concerned about because it exempts U.S. citizens. Again, the statute says otherwise. Section 1021 states that "[n]othing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." The problem is that "existing law" is unclear. The circumstances in which a U.S. citizen or other person captured or arrested in the United States may be detained under the Authorization for Use Military Force have not been definitively adjudicated.

Supporters also cite to section 1022 as proof that the NDAA does not apply to U.S. citizens. Section 1022 relates to mandatory detention in that is states that the military "shall" detain captured al-Qaeda members. Section 1022(b)(1), cited to by supporters, only states that the "requirement to detain a person in military custody under this section does not extend to citizens of the United States." In other words, it”s optional. Pursuant to section 1022, the military may, but is not required, to detain U.S. citizens suspected of being al-Qaeda members indefinitely without trial. To address the concerns about the sweeping powers authorized by the NDAA, Senator Diane Feinstein proposed adding the following section to the bill to clarify that it would not apply to U.S. citizens:
(e) Applicability to Citizens.—The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of the hostilities.

Remarkably, the Senate rejected the amendment 45 to 55.

Moreover, President Obama has stated that while the NDAA authorizes him to detain U.S. citizens indefinitely without trial, he would not do so. In his signing statement, he promised, "Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens." The President”s promise, however, is not a substitute for the Constitution”s guarantee of due process. I also remember his other promise to close Guantanamo Bay prison.

Make no mistake about it, the future of our democracy is gravely threatened when Congress passes a bill, which the President signs, that effectively makes him, and all future Presidents, the judge, jury, and executioner of Americans. Regrettably, the survivors of Minidoka, Tule Lake, and the other incarceration camps know only too well of the resulting injustices.

Yes, President Obama and Congress must keep America safe, but they must not abandon the core rights, liberties, and principles enshrined in our Constitution and Bill of Rights; they swore an oath to support and defend the Constitution. This is precisely what distinguishes Americans from the terrorists—we follow and uphold the rule of law, or at least we did.

Indefinite Detention Portland JACL

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