The National Defense Authorization Act was met with intense scrutiny from critics when it escaped Congress and opposition even forced the president into offering a signing statement before he inked the legislation addressing the issues. Under the NDAA, the president is granted the authority to indefinitely detain and torture anyone, including American citizens, without bringing them to trial. Although officials say it only affirms detention provisions from earlier legislation, the signing started a slippery slope which could indeed eventually see to it that anyone suspected of a “belligerent act” be put behind bars without a trial.
“The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” Obama said while signing the NDAA on December 31, 2011. Despite these concerns, however, the NDAA was acted into law. Now less than a month later, those provisions that Obama said were of concern are now already being used to keep Musa'ab al-Madhwani further behind bars.
Attorneys for al-Madhwani filed a petition last year to ask the court to re-investigate the case and perhaps finally bring the detainee before a jury for his alleged crimes. In their response, the United States Supreme Court writes that the ongoing detention of this “model prisoner” is perfectly by-the-books, as the National Defense Authorization Act allows it.
In response to the cert petition filed last year by al-Madhwani’s attorneys, the Supreme Court answers by quoting a provision of the NDAA.“In Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), Pub. L. No. 112-81, 125 Stat. 1561 (2011), Congress ‘affirm[ed]’ that the authority granted by the AUMF includes the authority to detain,‘under the law of war,’ any ‘person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”
Further in their response, the Supreme Court quotes the Act again, calling up the authority granted to the president to detain any “person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”
When he added a signing statement to the NDAA, President Obama acknowledged the harsh realities of the legislation but said he would not enforce it on American citizens. That does not mean, however, that other administrations have to abide by that interpretation. Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against the president earlier this month challenging the legality of the NDAA. In an explanation of the suit, Hedges wrote,“I have had dinner more times than I can count with people whom this country brands as terrorists,” adding,“But that does not make me one.” Regardless, any affiliation with a group branded as such could lead authorities to leap to such conclusions.
Another legislation, yet to be approved, would allow the US government to strike citizenship away without a trial, essentially opening up the NDAA for everyone, with or without Obama’s order. That bill, the Enemy Expatriation Act, would strip nationality from anyone concerned a threat.
As seen with al-Madhwani, however, even American authorities don’t consider him a threat. He was barely a child when he accidentally found himself on the wrong side of a war with America and for it he was detained and tortured in at least two different facilities by Pakistanis and Americans alike before arriving at Guantanamo. Now a decade later, the NDAA will see to it that the rest of his life will be spent behind bars in the US military prison.