It's no wonder that the 2012 defense reauthorization bill passed by the House threatened the historic fabric of American civil liberties. For a while now, legislation coming out of the House has been a brew that might have been whipped up in a caldron by Macbeth's witches: a compound consisting of a little eye of newt, a little toe of frog, a little adder's fork, a little Boehner's smirk. (The House's bill actually prohibited the use of fiscal year 2012 funds to "transfer or release an individual detained at Guantanamo Bay.")
But the Senate? Whatever got into the Senate? Why did the Senate pass, 93 to 7, a new National Defense Authorization Act that would either (a) give the military the right to detain indefinitely American citizens accused of having even the most tenuous ties to terrorism—potentially including war protesters or others who question U.S. policy—or (b) create a nightmare of confusion about whether it applies to citizens or not?
Leaning over the kettle with their heads in the steam of this one were Carl Levin and John McCain, fogging up a concept of citizens' rights that has a pedigree running back to the Romans. Vague language doesn't make a bad law less bad. It just makes things worse than ever, because those who favor the extreme interpretation will act on it while those who would challenge it are slowed down by its ambiguities.
Even the heads of the FBI and the CIA have reservations about this legislation. Law professor Stephen Vladeck of American University's Washington College of Law, citing a section that says a person can be detained for supporting "associated forces& engaged in hostilities against& coalition partners," warns that "& the NDAA effectively authorizes the military detention of any individual who provides such assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict."
At the time of this writing, the fate of NDAA 2012 was as uncertain as its meaning, because a presidential veto was considered likely. The issue here is not even so much whether the legislation is allowed to stand as that it ever passed in the first place, and that it passed with the help of a phalanx of people who should have known better. For a clear, careful explanation of its possible applications and the legal cul-de-sac the bill and the Feinstein amendment have created, check "The NDAA and U.S. Citizen Detention" by Robert Chesney at www.lawfareblog.com for December 7, 2011."