Progress and the NDAA

Last week, Gordon Hirabayashi, a Japanese-American who was imprisoned for refusing the federal government’s internment camps during World War II, died at 93. He’s a little-known hero, and here’s what he was up against:

In February 1942, two months after the Japanese attacked Pearl Harbor, President Franklin D. Roosevelt, in the name of protecting the nation against espionage and sabotage, authorized the designation of areas from which anyone could be excluded. One month later, a curfew was imposed along the West Coast on people of Japanese ancestry, and in May 1942, the West Coast military command ordered their removal to inland camps in harsh and isolated terrain.

Forty years later, and less than 30 years ago, Hirabayashi was finally “vindicated” as his conviction was overturned, but he used his freedom to speak on his Constitutionally protected rights:

Mr. Hirabayashi and his fellow Japanese-Americans Fred Korematsu and Minoru Yasui, who all brought lawsuits before the Supreme Court, emerged as symbols of protest against unchecked governmental powers in a time of war.

“I want vindication not only for myself,” Mr. Hirabayashi told The New York Times in 1985 as he was fighting to have his conviction vacated. “I also want the cloud removed from over the heads of 120,000 others. My citizenship didn’t protect me one bit. Our Constitution was reduced to a scrap of paper.”

Compare what Hirabayashi was fighting in 1942 with what is now legally codified under the most recent National Defense Authorization Act (NDAA), which President Obama threatened to veto until it included language allowing U.S. citizens to potentially be indefinitely detained.

Here are the relevant sections of the NDAA on indefinite detention:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AU- THORIZATION FOR USE OF MILITARY FORCE.

IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.

Those “covered persons”:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) 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.

Length of detention:

Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

Presidential waiver:

WAIVER FOR NATIONAL SECURITY.—The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

Paragraph (1) on United States citizens:

(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

As you can read, the bill’s language makes little effort to conceal the newly granted power for the president to simply tell congress that it’s in the interest of national security to indefinitely detain U.S. citizens deemed to have “directly supported” American enemies. (Bradley Manning, by the way, is accused of indirectly “aiding the enemy,” so this bill is just a word short of ending his trial altogether.)

I don’t intend to suggest that the potential for indefinite detention of American citizens is inherently worse than that of citizens anywhere else – it’s not. International law is supposed to enforce due process for people anywhere and everywhere.

I also don’t want to overstate how new these powers are: instead, the NDAA merely codifies and legalizes what the Obama administration has already claimed the power to do.

Finally, I’m not suggesting that these NDAA provisions are equivalent to the horribly racist and dehumanizing Japanese-American internment camps. They are merely the legal language used to allow for similarly heinous abuses of the Bill of Rights.

But I think it’s worth noting that in 1942, President Roosevelt claimed “protecting the nation against espionage and sabotage” was sufficient justification for creating internment camps specifically for Japanese-Americans. And 70 years later, how far have we come? We now have a president with substantial progressive support ensuring that American citizens can be indefinitely detained at his whim, all in the name of “national security.”

The erosion of our civil liberties in America is rarely going to be as sharply obvious as it was in 1942, when racism was much more overt, a World War was raging, and the Internet wasn’t around to spread dissenting opinions so easily. Nowadays, the government uses official public language promising us of transparency, respect for the rule of law, and enforced civil liberties to make covert work against those very ideals that much harder to see.