As a matter of law, the NDAA itself does not explicitly speak to indefinite detention in the United States. Instead, it leaves in place “existing law” – the 2001 Authorization for the Use of Military Force (AUMF) – the full scope of which has not been authoritatively construed by the Supreme Court. As a result of the unsettled nature of existing law, the military has on two occasions in the past claimed authority under the 2001 AUMF to indefinitely detain individuals picked up in the United States, against the better counsel of the Constitution. Although the Obama Administration has stated that it won’t repeat these mistakes, nothing in current law prevents this or a future administration from claiming such extraordinary authority.


Second, Congress, in a stroke of genius during last year’s NDAA debate, included a provision that forces the military to take custody of a category of foreign terrorism suspects, absent a presidential waiver. This mandatory military custody policy is so extreme that it was opposed by virtually every national security expert that looked at it, including former Bush administration officials. The CIA Director opposed it. As did the Secretary of Defense, FBI Director, and Director of National Intelligence.
Retired generals and admirals pointed out that forcing the military to take custody of terrorism suspects would give U.S. armed forces a mission they neither want nor need. Current and former national security professionals emphasized that it simply doesn’t make sense to undermine law enforcement operations for the sake of an ideological belief that terrorism suspects should be in military custody.  Though the president issued a policy directive limiting the application of the mandatory military custody provision, it still remains on the books, subject to future abuse.
That brings us to today: the Smith amendment picks up where the Congress failed during the NDAA debate. The Smith amendment would ban indefinite military detention, and military commission trials, within the United States. It would also repeal, in full, the mandatory military custody requirement, and ensure that the military will not be forced to take custody of any terrorism suspects. Importantly, it would put forth civilian courts, established under Article III of the Constitution, as the lawful, appropriate, and time-tested method for handling terrorism threats in the United States
Raha Wala is an advocacy counsel at Human Rights First.