America's big mistake on indefinite detention of terror suspects

From Tunis to Athens to Moscow to Wall Street, 2011 has been about dispatching with old ways and rulers, or at the very least, putting them on notice that business as usual is no longer acceptable.

Yet as the year hurtles toward its end, the passage of the National Defense Authorization Act (NDAA) has President Obama and Congress standing in stark contrast to that global momentum by ossifying the mistaken ways of what should be a former era.

The NDAA codifies into law the radical expansion of executive power that has defined US policy since the terrorist attacks of 9/11 – and that has been a hallmark of the so-called War on Terror. Notably, it includes provisions that require the military – not law enforcement – to indefinitely jail accused terrorists. Accused, not convicted. 

Obama did threaten to veto the bill, but not because of any objection to the substance of the law. Actually, the White House balked at congressional attempts to limit such provisions to nonAmericans only.

Indeed, the president, who is a former constitutional law professor, wanted the chief executive to retain the discretion to apply such provisions – that is, indefinite military detention – to American citizens, who otherwise are entitled under the Constitution to a speedy and public trial and several due process protections. Congress capitulated.

And so, unfortunately, the NDAA stays the course of the War on Terror as it relates to restricted civil liberties. It maintains the underlying premise that because of exigent circumstances, the power of the executive must be enlarged and civil rights and civil liberties must be curbed.

These are much like arguments that have been made for decades and continue to be made from Cairo to Damascus to justify emergency laws and military overrides of civilian rule. These weak arguments also continue to be rejected by the citizens of those countries and those who stand in solidarity with them as part of a growing worldwide movement.

Obama and Congress’s approval of the NDAA suggests they are blind to their perpetuation of a paradigm that, in light of the events of 2011, is not only outdated, but stands against where the tide of global history wants to go. And their lecturing of autocrats to get out of the way of that same tide suggests they are also deaf to the irony of their plea.

But why this dissonance?

In the processing of the last 10 years, Americans have failed to reach a complete understanding of what the underside of the War on Terror has meant.

They have barely acknowledged the domestic front of this borderless and increasingly perpetual campaign. While some thought has been give to the victims of US international interventions, little has been spared for the  many individuals and communities, right here within America’s borders, who have borne the brunt of both the Bush and Obama administrations’ disregard of constitutional principles.

This in part is due to the desire – at least among liberals – to believe these violations ceased when Obama was elected president. They have in fact expanded.

We have thus perhaps falsely presumed that counter-terror efforts here at home have been costless and errorless. Or when these costs and errors are mentioned – renditions, disappearances, dubious law enforcement practices, and questionable legal process – they are not entered into the collective American consciousness in full emotional detail, layer, and context. They are not processed as part of the collective American experience of the post 9/11 decade. It is almost as if acknowledging these costs would diminish and slight the suffering and loss of life that occurred on that September morning.

This leaves unchallenged the insinuation that this sort of collateral damage is borne by a collectively guilty “them” and not an exceptional and innocent “us.” As Americans, we have failed to understand that the victims in these civil liberties abuses are also us.

For legislators and Americans who are not alarmed by the NDAA and its ilk, it is likely because they envision these procedures being applied not to the Timothy McVeigh types – for whom regular criminal prosecution was deemed acceptable and just – but rather to Arab, Muslim, South Asian, and/or Middle Eastern folks. These people belong to communities that are persistently perceived as not really American.

After all, a part of America can’t even stomach the TLC reality show “All-American Muslim.” The retailer Lowe’s, for instance, pulled its ads from the show. The problem that some have is not that it’s reality TV, but that it highlights the unfathomable idea that Muslims and Arabs can be familiar – and American.

The anniversary of 9/11 and the withdrawal of US troops from Iraq presented an opportunity for a more honest reckoning than they proved to be.

Had the commemorations instead been more robust and inclusive – had they examined outsourced torture, FBI agent-provacateurs in American mosques, or escalating Islamophobia – perhaps America’s elected leaders would not be so eager today to support further restrictions on liberties, nor would there be a lack of public outcry, which is often mistaken for support.

For a president who once swathed himself in the sentiments of hope and change and prided himself on being in step with the aspirations of those across the planet who would seek a life of dignity, his actions appear fraudulent.

Yet these global movements for freedom are not waiting for President Obama or anyone else to “get it.” They’ve ceased to be faceless, ceased to be voiceless, and ceased to be violated.

And that was just 2011.

Alia Malek is the author of “A Country Called Amreeka: US History Re-Told Through Arab American Lives” and the editor of “Patriot Acts: Narratives of Post 9/11 Injustices.” Follow Alia on Twitter @AliaMalek.