Patrick G. Eddington
Over a decade ago, Congress passed and President Barack Obama signed into law the National Defense Authorization Act (NDAA) for Fiscal Year 2012, which became Public Law 112–81 (10 U.S.C. 801 note). Section 1021(b) of that mammoth bill included language allowing US military forces to indefinitely detain anyone who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” as well as “a person who was a 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
It is the second clause, with its undefined terms of “aided,” “supported,” and “associated forces” that set off alarm bells among civil liberties defenders. Would someone who posted something online suggesting Taliban military operations against coalition forces were an act of self‐defense be considered “aiding” or “supporting” the Taliban? In a much more contemporary context, would Americans expressing outrage against mass civilian casualties in Gaza as a result of Israeli military action be viewed as “aiding” or “supporting” Hamas, a State Department–designated terrorist organization?
The American Civil Liberties Union noted in late 2011:
The law is an historic threat because it codifies indefinite military detention without charge or trial into law for the first time in American history. It could permit the president—and all future presidents—to order the military to imprison indefinitely civilians captured far from any battlefield without charge or trial.
Ever since Section 1021(b)‘s enactment, there have been attempts to repeal or modify the language. This afternoon, the latest effort—led by Rep. Matt Rosendale (R‑MT)—succeeded when his amendment to the FY 2025 NDAA was adopted by voice vote. Rosendale’s amendment, if it survives the House‐Senate NDAA conference process and remains in the bill, would prohibit American military forces from indefinitely detaining a US citizen under Section 1021(b). In a year with otherwise terrible news on the constitutional rights front, this is one victory very much worth celebrating.
