Military Detention for Journalists

http://www.thenation.com/article/168040/military-detention-journalists

The important question of whether the military may hold US citizens and foreign nationals in indefinite detention came to a head recently in two important forums: a federal court in Manhattan and the House of Representatives. On May 16, US District Judge Katherine Forrest ruled unconstitutional an important section of the National Defense Authorization Act for fiscal year 2012, finding that it threatened US citizens with military detention for First Amendment–protected speech and associations. Two days later, taking up the NDAA for 2013, the House rejected a rare bipartisan proposal to bar the military detention of people apprehended on US soil. At the same time, it approved language that appeared to mandate that all foreign nationals who can be tried in a military commission must be tried there rather than in civilian criminal court.

These developments underscore the remarkable fact that more than ten years after the September 11 terrorist attacks, the scope of the government’s power to use military authority to lock up human beings indefinitely remains fundamentally unclear. Indeed, it was that very ambiguity that led Judge Forrest to rule an important part of the NDAA unconstitutional. There is undoubtedly a legitimate place for military detention in the context of an armed conflict, so long as it conforms to the laws of war. But it is deeply disturbing that a decade into the conflict with Al Qaeda, there remain serious doubts about the extent of that awesome authority. Still more troubling is the apparent fact that the government is unwilling to erase those doubts.

The federal lawsuit challenged Section 1021 of the NDAA, which authorizes the indefinite military detention of people who are “part of or substantially supported Al Qaeda, the Taliban, or associated forces.” Chris Hedges, Noam Chomsky, Daniel Ellsberg, and several other journalists and activists sued, claiming that the law was so overbroad and vague, they feared that their writings and associations might lead the government to lock them up in military detention.

The government is certain to appeal. But it need not. It could—and should—resolve the matter simply by making clear to the district court that plaintiffs’ conduct is not “substantial support” of Al Qaeda, the Taliban or associated forces, and therefore they need not worry about military detention. The fact that Justice Department attorneys were unwilling to say so is more worrying than the statute itself. Perhaps they thought they could prevail without making such a concession. But what possible downside is there to saying that people are free to write articles about Al Qaeda or interview its members without fear that they are providing the “substantial support” that leads to military detention? The ball is squarely in Obama’s court to reassure the American people that his administration respects their rights.

The other place this problem could be resolved, at least in theory, is Congress. It could amend the NDAA to make clear that it does not permit detention based on First Amendment–protected speech, and does not authorize the detention of US citizens. But that body has long since proven itself incapable of solving problems about civil liberties in the struggle against terrorism. In its latest intervention, the House refused to bar the military detention of people apprehended in the United States and has simultaneously insisted that, whenever possible, foreigners be tried in the military commission system, even if a civilian criminal trial would be simpler, more legitimate and more effective (as has consistently been shown to be the case for ten years).