EMORY | Could Americans face indefinite detention under new law?

8:25 AM, Jan 27, 2012   |    comments
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But this year President Barack Obama signed into law some controversial provisions of the National Defense Authorization Act. Critics from the far left to the far right are howling mad because of Section 1021, the part that deals with indefinitely detaining terrorism suspects by the military.

ATLANTA -- It may be the biggest controversy you've never heard of.

This year, President Barack Obama signed into law some controversial provisions of the National Defense Authorization Act. Critics from the far left to the far right are howling mad because of Section 1021, the part that deals with indefinitely detaining terrorism suspects by the military.

And opponents say that "terrorism suspects" could mean you.

The law is worded is such a way that it gives great discretion to the military on who is considered a "covered person."

"What this does is it puts Congress on the same page as the president and the courts, that at least in some circumstances one might have military detention of a U.S. citizen," said Emory University law professor Charles Shanor, an expert in terrorism. "But that citizen still has at least the Supreme Court up there that still hasn't made a ruling on that issue."

Among those who believe the law is a threat to Americans is the Occupy Movement, which has already seen its members rounded up by civilian authorities for demonstrations in massive displays of force.

Local organizer Tim Franzen calls Sectioon 1021 "horrifying," saying it "sets the stage for the mass detention" of protestors who oppose this or future administrations.

But the law does have certain safeguards.

"What the statute says is the President is to draw up some rules about the process," Shanor said. "The statute says, in fact, a) you're going to have a lawyer and b) you're going to have a hearing at a minimum before a military judge -- not just before a military officer, not just before the Secretary of Defense."

In fact, Emory law students, through the International Humanitarian Law Clinic, have already represented military detainees in Guantanamo Bay.

Shanor said the courts can still intervene to release potential detainees who make a compelling case.

"The person who was so detained could bring a habeas corpus action in federal court, saying 'release me; and the reason for releasing me is for violating my constitutional rights to due process," he said.

The problem, according to Shanor, is defining exactly what process is due. He says the president is supposed to draw up the legal tools to address that issue.

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