While the House passed the National Defense Authorization Act by a comfortable 315-107 margin and the Senate by a margin of 81-14, the controversial provision which allows for the indefinite detention even of U.S. citizens is continuing to be challenged in court. This week the children of Japanese-Americans the federal government interned in detention camps during World War II, filed a friend of the court brief in Hedges v. Obama, drawing parallels with their parents’ detentions. That federal policy was ruled constitutional by the Supreme Court in the 1944 case Korematsu vs. United States, continuing a tradition of yielding on military issues, even when they involved domestic action. In a 6-3 decision, the Court accepted the government’s argument of national security during wartime.
The Supreme Court also agreed with the government in World War I on another far-reaching rights violation, deciding that free speech could be curtailed in times of war. Justice Oliver Wendell Holmes used the now-famous argument that “you can’t yell fire in a crowded theater” to rule that criminalizing some forms of political dissent, such as opposing the draft, was constitutional. The NDAA provisions can similarly serve to place limits on free speech and a free press. Another amicus brief filed in the NDAA case, by the Government Accountability Project, says that the indefinite detention provisions in the NDAA could also have a chilling effect on government whistleblowers.
The government argues that the country is in a state of war (on terror, even if they don’t use the term publicly), and the military has the authority to detain anyone in the world considered aiding Al-Qaeda or “associated forces” and hold them for the duration of the war. The war is considered worldwide and indefinite. When a federal judge earlier this year briefly ruled the applicable portion of the NDAA unconstitutional, the Justice Department argued the language was nothing new, and the power already used and approved by courts. An amendment put forward by Senators Mike Lee and Dianne Feinstein that would exempt U.S. citizens from the provision was stripped in conference before the law passed.
The president remains fully committed to the indefinite detention powers and will be signing the bill presumably before the end of the year. Last year he signed it on New Year’s Eve, arguing he would never use the power to indefinitely detain Amricans. Officials explained the detentions were, uh, temporary.