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Tucked into the National Defense Authorization Act of 2012, which Obama signed on New Year's Eve, are provisions that appear to allow indefinite military detention of American terrorism suspects, and to require it of suspected foreign enemies.
The Obama administration insists the law merely codifies existing standards, but its strong supporters and vehement opponents are sure it does much more, legally enshrining for the first time in 60 years the authority to hold citizens without trial.
"We're no longer in the box of having to read Miranda rights to terrorists who come to America to try to kill us," said Sen. Lindsey Graham (R-S.C.), an author of the bill who praised its passage on his website earlier this month.
"Homegrown terrorism is a real threat," he said. "There are a lot of people being radicalized on the Internet. So if someone goes to Pakistan as an American citizen, gets radicalized in a madrassa and comes back here and starts attacking Americans, I want to make sure they're held for intelligence-gathering purposes and they're not read their Miranda rights but they're held by the military, the CIA, and the FBI to find out, 'Is another attack coming?'"
"This is the battlefield," Graham said, implying that Americans captured on that battlefield need to be treated just like the 171 prisoners still being held at Gitmo.
"We all know U.S. citizens would -- that's what we spent 20 or 30 hours of debate about," Sen. John McCain (R-Ariz.), another author of the bill, said last month when asked whether it was intended to permit the detention of Americans. He, like Graham, had been trying for years to get expanded detention authorities passed into law.
Critics on the left argue that, despite Obama's statements to the contrary, the law accomplishes exactly what its Republican authors intended.
"This law codifies indefinite detentions of American citizens for the first time since the McCarthy era," said Andrea Prasow, a lawyer with Human Rights Watch, referring to the McCarran Act of 1950 that allowed the summary jailing of certain suspected Communists.
"Here we are, 10 years after Guantanamo opened, with Osama bin Laden dead, and we see Congress coming anew with this effort to re-militarize the struggle against terrorism," said Heather Hurlburt, the executive director of the National Security Network, noting that the civilian justice system has won convictions of more than 400 terrorists, while the military system has tallied just six.
The relevant section of the new law -- Section 1021 -- covers "any person" who either "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks," as well as those who were "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."
As that definition does not leave out Americans, it follows that they are among those who can be considered terrorism suspects. The bill also is explicit that such suspected terrorists may be held by the military without trial.
Yet the Obama administration argues that in signing the law, the president simply reaffirmed powers that the White House already had without adding any new authorities, and that he even increased protections for citizens that Congress had intended to strip. White House officials said they were in no way culpable for allowing indefinite detention of American citizens.
"Our argument would be, one, no we're not. We don't think this changes [the] law," said National Security Council spokesman Tommy Vietor. "This just restates Congress' 2001 Authorization for Use of Military Force. Two, we did everything possible to fix these detention provisions."
Indeed, as the bill worked its way through Congress, Obama threatened to veto it, and only retreated after various provisions were modified.
Perhaps the key passage that prompted the administration to switch its stance is a clause contained within Section 1021, which specifies: "Nothing in this section is intended to limit or expand the authority of the president or the scope of the Authorization for Use of Military Force."
A senior White House official told The Huffington Post that the provision ensures the law does nothing new, and makes whatever authorities an executive might claim subject to the laws of war, which add a layer of jurisprudence that must be considered by any judge weighing a detention case.
"Clarifying that the AUMF is informed by the laws of war is an important principle that people should be comforted by," said the official, who spoke on the condition of anonymity. "But you cannot argue that this provision expands the AUMF. The language we added to the bill makes clear that it's merely affirming, and not expanding, the AUMF."
Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, tried to include a provision in the bill that would have explicitly exempted Americans, but failed to garner enough support for it. She was, however, able to add a clause that says, "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
Citing those two caveats and a Justice Department definition of detainees' habeas corpus rights stemming from a string of rulings handed down by the U.S. Court of Appeals for the D.C. Circuit, a senior administration official argued that the detention provision becomes "nothing more than a restatement of existing law. ... It doesn't do anything -- good or bad."
In addition, Obama ultimately issued a signing statement declaring he would not detain Americans indefinitely without trial.
Many opponents of the law concede the White House is making a legitimate argument, but still note that in the past, only the administration has asserted its detention authority. Passage of the law puts Congress on the record supporting it, and adds another layer of intent for judges to consider.
Ardent backers of the law dismiss the White House's comments, pointing to the most recent decisions in court cases regarding Americans held indefinitely. Perhaps the most important is the case of American Jose Padilla, the alleged dirty bomber who was ultimately convicted of federal terrorism charges. Padilla had been held in military custody, and the last ruling in his case -- rendered by the U.S. Court of Appeals for the 4th Circuit -- found that his detention was proper.
The Supreme Court did not hear the case because the Bush administration decided to move Padilla to the civilian system, rendering it moot. Although the 4th Circuit's decision affirmed the legality of detaining Americans, the Supreme Court has yet to rule on such a case, so some argue it remains an unresolved issue.
When asked whether this provision of the NDAA authorizes the detention of U.S. citizens who are captured inside the United States, a senior administration official repeated that because of modifications they demanded in the bill, it merely maintains the status quo. "We would not agree to an expansion or anything that would settle unresolved legal issues. And we were successful," the official said.
Opponents argue that while Obama may choose to refrain from using all the authority the law grants him, a future president could interpret the powers far more aggressively, and start arresting more people and sending them to Guantanamo.
"With any of this, the concern is what the next administration will do," said Stephen Miles of the progressive national security coalition Win Without War. A President Romney, for example, "certainly could interpret it that way, and ultimately, it will up to the courts, but we shouldn't be anywhere near this."
The White House concedes that some of the contenders for the GOP presidential nomination could adopt a more aggressive interpretation if elected. "I think they can," a senior administration official said, but added that judges won't find anything new in the law to support it. "I don't think that this bill does anything to strengthen that argument."
And, in an implicit concession that a future administration could argue for detaining Americans, a senior administration official warned that exempting citizens was impractical. It could be difficult to determine whether an enemy combatant scooped up on the battlefield might be a U.S. citizen, for instance. Moreover, in the face of congressional opposition, such a protection would be extremely hard to write into law in a way that both preserves the Executive's options and protects rights to the White House's satisfaction.
At one point, some senators offered a provision that would spare citizens from detention for alleged activities within the United States to the "extent permitted by the Constitution of the United States." But the administration balked at that on the grounds that case law has found that the "extent permitted" actually includes indefinite detention.
Ultimately, after the bill passed with veto-proof majorities, White House officials said they had to accept a lot they -- and many Americans -- don't like, and that's why the president issued the signing statement saying he would not detain U.S. citizens.
Yet many of the bill's opponents insist that if Obama were serious about shielding U.S. citizens, he would have either insisted on some sort of provision that explicitly barred their indefinite incarceration or stuck to his veto threat.
The White House argues that those opponents -- and future administrations -- will get a different message when Obama continues to prosecute terrorists, without clapping citizens into detention.
"After eight years of this president's approach, demonstrating that it unquestionably works and that you don't need to place hundreds of people in military detention and hold them indefinitely to keep the country safe, I think the administration that comes after us will have to answer a lot of questions if they're going to try to do that stuff," a senior administration official said. "The last administration didn't need to do that to keep us safe, why are you doing this?"
"Demonstrating, unequivocally, that we can protect the American people without violating our laws or compromising our values is almost as powerful a constraint on [future administrations] as almost anything you could write into legislation," the official said.
Michael McAuliff covers politics and Congress for The Huffington Post.
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