During the eleven years that have elapsed since the September 11 attacks on America, the United States government has arbitrarily and indefinitely detained countless individuals suspected of terrorism without ever bringing evidence or charges against them, and without ever granting them a trial.
Nine months ago, this deeply controversial practice was codified into law for the first time in American history. On 31 December 2011, from his vacation rental in Hawaii, President Barack Obama signed the National Defense Authorization Act (NDAA) - an Act that, under section 1021, authorizes the president (and all future presidents) to order the indefinite military detention of anyone suspected of "substantially supporting" al Qaeda, the Taliban or "associated forces" engaged in hostilities against the United States, anywhere in the world.
The legislation has drawn severe criticism from Republicans and Democrats alike (with some warning of a "descent into totalitarianism"), as well as many American civil liberties groups and international human rights organizations. It has also sparked a furious lawsuit, with a group of prominent journalists and activists now suing the government to stop the NDAA's implementation.
Hedges versus Obama saga
The plaintiffs - including Noam Chomsky, Daniel Ellsberg, Birgitta Jónsdóttir, and, leading the case, Pulitzer prize-winning journalist Chris Hedges - argue that the Orwellian measure grants the government such a vast reach of power that journalists and activists must now seriously fear their own safety against indefinite detention for doing a job which can often involve interacting with terrorists. As one of the plaintiffs recently put it: "Did our support for WikiLeaks make us 'associated forces' of a group some in my government have labelled as terrorists? Would a panel with a member from Hamas be constituted as our providing the organization material 'support'?"
Last month, after the government's attorneys repeatedly refused to answer such questions and define the legislation's key terms in court, the plaintiffs were handed an unprecedented victory. Agreeing with their concerns, District Judge Katherine Forrest issued a landmark ruling that permanently blocked the NDAA provision, stating in her 112-page opinion that the measure "impermissibly impinges on guaranteed First Amendment rights [while] lacking sufficient definitional structure and protections to meet the requirements of due process." Less than 24 hours later, the Obama administration had filed an appeal.
As is often the case when the American government wants its way, however, the last three weeks have seen this important victory quickly morph into something more akin to a provisional defeat. Soon after Judge Forrest's ruling, Federal Judge Raymond Lohier temporarily blocked the decision using a so-called administrative stay, which was crucially extended on Tuesday by the US Court of Appeals for the 2nd Circuit. Supporting the administration's appeal and offering strong intimations that they considered Forrest's ruling to be flawed, the three judges - all appointed by Obama - concluded that "the public interest weighs in favour of granting the government's motion for a stay."
For the meantime, then, the government has certainly won: the NDAA's indefinite detention clause is free to be enforced until the courts decide whether to kill or allow the provisions. But is this truly in the public interest?
Civil liberties versus national security?
The political debate over the war on terror shouldn't be depicted as a simple choice between human rights and the rule of law on one hand, and national security and public safety on the other - the government does, after all, have a positive obligation to protect the fundamental right of its people to security. The question, then, is one of limits: what actions should the public allow its government to take in order to fulfill this obligation?
The plaintiffs do not seem to argue that the indefinite detention clause is, by itself, an action too far. Rather, in claiming that it is an assault on the right of activists and journalists to exercise free speech, they object most obviously to its scope and argue that certain people should enjoy protection from it.
Many others who oppose the legislation are similarly more preoccupied with its reach, with the loudest outcry coming from those who object to the measure that allows the military to capture and detain American citizens on US soil.
Some of these opponents may certainly object to section 1021's provisions on a more basic level. But when we consider what powers we should grant to our governments, we would all do well to remember the stirring warning of Martin Niemöller: "Then they came for me, and there was no one left to speak for me".
The debate over indefinite detention should not be one about scope - in fact, there shouldn't even be a debate. To deny any individual due process is a basic violation of human rights and is fundamentally wrong under all circumstances. The US government should not be allowed to detain anyone indefinitely without charge, evidence, or trial - be they activists or journalists, Americans or foreigners. Instead of offering protection, such measures smack of tyranny, flying in the face of international law and compromising and casting away the core values of a democratic society such as the rule of law, individual autonomy, and freedom of speech. As Lord Leonard Hoffmann remarked in 2004 when ruling that the British government's indefinite detention of foreign terrorist suspects broke human rights laws:
"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."
In America, the decision now rests with the courts as both parties in the Hedges v. Obama case file their reply briefs before December, and wait for a new calendar date to re-argue the case. Whatever the outcome of the lawsuit though, one thing will remain absolutely constant: indefinite imprisonment without due process will continue to be anathema in any country that claims to uphold the rule of law.