While the House passed the
National Defense Authorization Act by a comfortable 315-107 margin
and the
Senate by a margin of 81-14, the controversial provision which
allows for the indefinite detention even of U.S. citizens is
continuing to be challenged in court. This week the children of
Japanese-Americans the federal government interned in detention
camps during World War II, filed a friend of the court
brief in Hedges v. Obama, drawing parallels with their
parents’ detentions. That federal policy was ruled constitutional
by the Supreme Court in the 1944 case Korematsu
vs. United States, continuing a tradition of yielding on
military issues, even when they involved domestic action. In a 6-3
decision, the Court accepted the government’s argument of national
security during wartime.

The Supreme Court also agreed with the government in World War I
on another far-reaching rights violation, deciding that free speech
could be curtailed in times of war. Justice Oliver Wendell Holmes
used the now-famous argument that “you can’t yell fire in a crowded
theater” to rule that criminalizing some forms of political
dissent, such as opposing the draft, was constitutional. The NDAA
provisions can similarly serve to place limits
on free speech and a free press.  Another amicus brief

filed in the NDAA case, by the Government Accountability
Project, says that the indefinite detention provisions in the NDAA
could also have a chilling effect on government whistleblowers.

The government argues that the country is in a state of war (on
terror, even if they don’t use the term publicly), and the military
has the authority to detain anyone in the world considered aiding
Al-Qaeda or “associated forces”  and hold them for the
duration of the war. The war is considered worldwide and
indefinite. When a federal judge earlier this year briefly ruled
the applicable portion of the NDAA unconstitutional, the Justice
Department argued the language was
nothing new, and the power
already used and approved by courts. An amendment put forward
by Senators Mike Lee and Dianne Feinstein that would exempt U.S.
citizens from the provision was
stripped in conference before the law passed.

The president remains fully
committed to the indefinite detention powers and will be
signing the bill presumably before the end of the year. Last year
he
signed it on New Year’s Eve, arguing he would never use the
power to indefinitely detain Amricans. Officials explained the
detentions were, uh, temporary.