The 2012 NDAA authorizes the President to order the indefinite detention of American citizens arrested on U.S.soil without charge or trial. I wrote about the NDAA on RedState last year. Many of you expressed your concerns about the bill to your Members of Congress. In response, House leadership told us that hearings would be held after the bill was enacted. Still, 43 Republicans voted against the final version of the NDAA.
In the last year, no hearings were held. And the “solution” that’s included in this year’s NDAA does nothing to address the constitutional problem of Americans being permanently detained without charge or trial.
This year’s NDAA states that the Afghanistan Authorization for Use of Military Force (AUMF) and the 2012 NDAA do not “deny the availability of the writ of habeas corpus . . . for any person who is detained in the United States.” (The language is in this year’s NDAA, sec. 1033, on p. 366 of this document.)
That sounds like an effective solution until you realize that no one believes habeas has been suspended. The Bush and Obama administrations haven’t claimed that habeas has been suspended. The Supreme Court stated unambiguously in 2004, “All agree suspension of the writ has not occurred here.” As Justice Scalia recognized, the Afghanistan AUMF “is not remotely a congressional suspension of the writ [of habeas corpus], and no one claims that it is.”
Habeas corpus is available to persons detained on U.S. soil, but it offers very limited protection. It doesn’t prevent the government from snatching Americans from their homes based on accusations that they’ve “substantially supported” forces “associated” with terrorists. It doesn’t guarantee Americans that the government will charge them with a crime and try them in a court of law. And it does nothing to stop the government from locking them up for the rest of their lives.