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A local boy tries to get a peek in the viewfinder of a journalist’s video camera as US Army soldiers with the 1-320 Field Artillery Regiment, 101st Airborne Division conduct a patrol in the village of Saidon Kalacheh in Arghandab Valley north of Kandahar. Reuters/Bob Strong



The important question of whether the military may hold US citizens and foreign nationals in indefinite detention came to a head recently in two important forums: a federal court in Manhattan and the House of Representatives. On May 16, US District Judge Katherine Forrest ruled unconstitutional an important section of the National Defense Authorization Act for fiscal year 2012, finding that it threatened US citizens with military detention for First Amendment–protected speech and associations. Two days later, taking up the NDAA for 2013, the House rejected a rare bipartisan proposal to bar the military detention of people apprehended on US soil. At the same time, it approved language that appeared to mandate that all foreign nationals who can be tried in a military commission must be tried there rather than in civilian criminal court. Ad Policy

These developments underscore the remarkable fact that more than ten years after the September 11 terrorist attacks, the scope of the government’s power to use military authority to lock up human beings indefinitely remains fundamentally unclear. Indeed, it was that very ambiguity that led Judge Forrest to rule an important part of the NDAA unconstitutional. There is undoubtedly a legitimate place for military detention in the context of an armed conflict, so long as it conforms to the laws of war. But it is deeply disturbing that a decade into the conflict with Al Qaeda, there remain serious doubts about the extent of that awesome authority. Still more troubling is the apparent fact that the government is unwilling to erase those doubts.

The federal lawsuit challenged Section 1021 of the NDAA, which authorizes the indefinite military detention of people who are “part of or substantially supported Al Qaeda, the Taliban, or associated forces.” Chris Hedges, Noam Chomsky, Daniel Ellsberg, and several other journalists and activists sued, claiming that the law was so overbroad and vague, they feared that their writings and associations might lead the government to lock them up in military detention.

At first glance, their fears may seem unfounded. In the decade since 9/11 the government has held only two US citizens in military detention in connection with the conflict with Al Qaeda, and both were alleged to have done much more than write an article or interview a terrorist. Yaser Hamdi was captured in 2001 on the battlefield in Afghanistan, carrying a weapon and accompanying a Taliban regiment. Jose Padilla, apprehended on arrival at O’Hare Airport in 2002, was said to be a member of Al Qaeda who had come here to commit a terrorist attack. Even Hedges’s and Chomsky’s harshest critics are unlikely to view them as being situated as Hamdi and Padilla are.

And Section 1021 itself expressly affirms that it does not “affect existing law or authorities relating to the detention of United States citizens,” language insisted on by Senator Dianne Feinstein when people began objecting to the NDAA’s potential application to American citizens. That language seems to state that the law has no effect on US citizens at all. And President Obama said in his NDAA signing statement that “my Administration will not authorize the indefinite military detention without trial of American citizens.” He has been true to his word.

Given that state of affairs, most observers expected the court to dismiss the complaints of Hedges et al. and throw out their case for lack of standing (to challenge a law, one must at a minimum show that there is a credible threat that it will be enforced against oneself). The administration’s lawyers argued just that. And they had several facts in their favor: no one in Hedges’s or Chomsky’s position had been placed in military detention; the law on its face said it did not expand detention authority over US citizens; and the president had said he would not use military detention against Americans.

But when pressed by the judge at a hearing on the case, the government’s lawyer obstinately refused to assure the plaintiffs that they were free to engage in their conduct without being confined in a military brig. The government appeared to want to keep its options open. That desire, coupled with the open-ended and undefined character of terms like “substantial support” and “associated forces,” led Judge Forrest to conclude that the plaintiffs had a reasonable fear that they might be subjected to the law. If they couldn’t, she reasoned, it would have been simple for the government to say so. On the merits, she determined that giving the government the power to detain on the basis of undefined “support” to undefined “associated forces” was both too broad and too vague. The government has the power to detain, she confirmed, but such a significant power must be subject to narrower and more clearly articulated limits. Forrest preliminarily barred the law’s enforcement against the plaintiffs.

The government is certain to appeal. But it need not. It could—and should—resolve the matter simply by making clear to the district court that plaintiffs’ conduct is not “substantial support” of Al Qaeda, the Taliban or associated forces, and therefore they need not worry about military detention. The fact that Justice Department attorneys were unwilling to say so is more worrying than the statute itself. Perhaps they thought they could prevail without making such a concession. But what possible downside is there to saying that people are free to write articles about Al Qaeda or interview its members without fear that they are providing the “substantial support” that leads to military detention? The ball is squarely in Obama’s court to reassure the American people that his administration respects their rights.

The other place this problem could be resolved, at least in theory, is Congress. It could amend the NDAA to make clear that it does not permit detention based on First Amendment–protected speech, and does not authorize the detention of US citizens. But that body has long since proven itself incapable of solving problems about civil liberties in the struggle against terrorism. In its latest intervention, the House refused to bar the military detention of people apprehended in the United States and has simultaneously insisted that, whenever possible, foreigners be tried in the military commission system, even if a civilian criminal trial would be simpler, more legitimate and more effective (as has consistently been shown to be the case for ten years).

We have long known that we cannot expect rational action from Congress on these subjects. But the administration’s conduct in the lawsuit against the NDAA suggests it has lost its capacity for reason as well. Terrorists aim to induce fear and irrationality in their targets. Are they winning?