North by Northwestern

The recently proposed laws that would effectively empower the government and private companies to censor the internet, SOPA and PIPA, have been receiving a lot of attention recently from net neutrality advocates. Techdirt.com called them “draconian,” and Wired.com described 2011 as the year “that intellectual property trumped civil liberties.” Yet in the shadow of this outrage, there was another bill that recently went through Congress with relatively little fanfare that could be described in very similar terms. The bill to which I am referring is the indefinite detention bill, which was imbedded in the 2012 National Defense Authorization Act (NDAA).

In similar fashion to SOPA and PIPA, the bill has been slammed by civil liberties organizations such as the ACLU, who described the indefinite detention provision as “illegal, un-American and an impediment to achieving justice.” If one considers the implications of the bill’s content, it is not difficult to grasp the unconstitutional and practically Orwellian nature of the bill, which allows issues of national security to trump the careful protection of civil liberties.

So, what exactly does this bill contain, and what are the implications? Although it consists of a number of provisions, three key provisions within the bill authorize the following: detainment of suspected terrorists without trial, including U.S. citizens, until the end of present hostilities; mandated military custody for most terrorism suspects; and further restriction on transfers from Guantanamo Bay.  

The implications of these provisions are quite clear. Considering that present hostilities are nontraditional in nature, have been occurring for over a decade and have no clear end in sight, such detainment can be considered practically indefinite. Additionally, mandating the military to take responsibility for even domestic terrorist suspects would break the post-Reconstruction act limiting the role the military plays in domestic law enforcement. And lastly, Guantanamo Bay will be further enshrined in law, establishing another roadblock to shutting it down.

To make this all worse, unlike SOPA and PIPA, the NDAA has already been passed by Congress and signed into law by President Obama. However, in his signing statement, Obama made it clear that he had reservations regarding some of the provisions of the bill.

“The fact that I support this bill as a whole does not mean I agree with everything in it," he said. "In particular, I have...serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.”

Obama went further, arguing that although the language exists in the bill, his administration would not use it to detain United States citizens.

“I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations," President Obama said.

Yet his statement is, unfortunately, largely rhetorical in nature, and if you are suspected of being a terrorist or being affiliated with terrorists, you can now legally be detained without trial in the future under another administration that does not share the same interpretation of the language.

This prospect is not only troubling due to it’s constitutional implications, but is made worse by the broad scope of indicators and characteristics that could label one a suspected terrorist. There is no single comprehensive list, but the Department of Homeland Security has stated throughout a number of reports that the following behavior could be considered potential terrorist indicators: buying goods in bulk, buying gold, owning guns, using a watch or binoculars, using cash to make purchases, as well as a number of other mundane activities.

It should not be surprising then that size of suspected terrorist and terrorist watch lists is quite astounding. In 2008, it was reported by the Justice Department’s Inspector General that the “consolidated watch list” consisted of 1.1 million names, which estimates corresponded to about 400,000 people with various aliases, about 8,000 of which are American citizens. Although there has been effort to time down such lists, they seem bound to grow due to what Reuters columnist Bernd Debusmann referred to as the principle of CYA (Cover Your Ass) that is employed by Washington bureaucracies where it is always best to err on the side of having too much information.

These developments seem all too reminiscent of Cold War era dissident “watch lists.” By 1967 “the NSA had developed a sophisticated watch list of prominent people in the anti-war movement. Every communication of almost 1,200 prominent opponents of the administration was read.” Consider the fact that in the past, simply participating in protests or being a part of anti-war groups often labeled a person a “person of interest,” causing them to be subject to increased surveillance. This practice has now been brought back into vogue, with the insidious communist threat being replaced by a looming terrorist threat. Former FBI agent and whistleblower Coleen Rowley could not have put it better, stating that "we're conflating proper dissent and terrorism," citing the FBI raids on antiwar activists’ homes in September 2010.

To make matters worse, detainment, and not just surveillance, is now a tool the government could use against so called domestic terrorists or dissidents. At the risk of sounding hyperbolic, the NDAA practically provides the tools for the implementation of a Chinese or Iranian style police-state in which little evidence is required to detain individuals that are critical of government policy. If you’d like an example of what that looks like, look no further than the 2011 arrest of Chinese artist and activist Ai Weiwei, who was detained due to his outspoken criticism of the Chinese government and support for the popular uprisings in the Middle East.

Even former military men, who may be most inclined to prioritizing national security, understand the hugely negative implications of the NDAA provisions. Two four-star Marine generals writing in a New York Times op-ed stated that “some in Congress are all too willing to undermine our ideals in the name of fighting terrorism. They should remember that American ideals are assets, not liabilities."

Despite growing up in a generation that has witnessed the normalization of such intrusive apparatuses as the TSA and the PATRIOT Act, we must recognize that while national security is something that must be protected, civil liberties are not something to be thrown to the wind when they are deemed inconvenient. Unfortunately, both Democrats and Republicans supported the passage of NDAA en masse, and it appears that if the American public does not speak up, it seems that neither party will make an effort stand up for the protection of civil liberties in the face of a growing national security apparatus. While it may be true that there are no imminent threats of government overreach or abuse on the horizon, there is a chance that we may collectively end up like the proverbial frog in the pot of water, only realizing that the water is boiling when it is already too late.