Raw, Unchecked Executive Power Would Fuel Trump's Anti-migrant Terror Campaign

Under GOP and Democrat administrations, America has a long, dark history of using "enemies lists," due process free detention, and political sabotage against the enemies of those in power. If elected, Trump may add more such hideous episodes to that history.

The week of June 10, the House Rules Committee will consider over 360 amendments to the Fiscal Year 2025 National Defense Authorization Act (NDAA), the giant Pentagon policy bill that has been a legislative and political fixture in Washington for over 60 years. And while the multitude of "culture war"-related amendments to this year's NDAA will likely get most of the press coverage, two GOP members are trying to fix a real problem with a prior NDAA--one that if not corrected could give a freshly elected Donald Trump additional legal authority to detain U.S. citizens without due process.

The provision in question, Section 1021(b) of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81; 10 6 U.S.C. 801 note), created an expansive definition of who the military could detain in the "War on Terror" context. The exact language of who is covered by Section 1021 is as follows:

(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(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.

For most of the last decade, the concern in the privacy and civil liberties community has centered on the phrase "or associated forces"--an undefined term whose ambiguity has already been expansively applied against al-Shabab and ISIS, which did not even exist on 9/11. Thus, those precedents could pave the way for American student groups engaged in pro-Palestinian demonstrations to be labeled "associated forces" acting on behalf of Hamas.  

I doubt that Representatives Morgan Griffith (R-VA) and Matt Rosendale (R-MT) have any love for Students for Justice in Palestine or other pro-Palestinian groups that have been in news of late over campus protests about the war between Israel and Hamas. But both of these House members seem to realize is that as it stands, Section 1021(b) of the current law would allow U.S. citizens--natural born or naturalized--to be detained without due process, something completely at odds with the Constitution.

Griffith's amendment would add the following new language to Section 1021(b):

A citizen of the United States who knowingly engages in an activity described in paragraph (1) or (2) while inside the United States.

Griffith wants a traditional mens rea legal requirement added to the law--i.e., a "criminal intent" or "guilty mind" standard--something that is normally mandated in criminal trials.

Rosendale's approach is even more direct; his amendment would explicitly exclude U.S. citizens from being subjection to Section 1021(b).

One reason Rosendale's approach is clearly the better one is that if Griffith's amendment became law it would seem to fulfil a key provision of the 1971 Non-Detention Act (18 U. S. C. §4001(a)), which states that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

In theory, when it was passed in 2012, Section 1021(b) opened the door to the very possibility that U.S. citizens could in fact been detained without charge if they were in even a tenuous way connected to terrorist organizations in the Middle East and Southwest Asia. In my view, if Griffith's amendment became law it would seem to legitimize Section 1021(b). That could put pro-Palestinian individuals and groups at risk of arrest and detention. But it could also put even more people at the same risk.

Just six months ago, Trump and key people around him made it clear that they are prepared, if not eager, to use the U.S. military to go after illegal aliens and put them in concentration camps prior to deportation. And despite the fact that in 2018 in Trump v. Hawaii the Supreme Court made it clear that "The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority," the Court's ruling in favor of Trump's "Muslim ban" is a precedent Trump can and almost certainly will use against Central and South American illegal aliens via exclusion on "national security" grounds.

However, the question is not simply whether he will employ the American military to help with the round ups and detention of those here illegally, but whether he will try to designate those illegal aliens as a "terrorist threat" and employ Section 1021(b) to go after any Americans who have in any way helped those migrants. Just last month, he used exactly that kind of language to characterize the border crossers.

Groups like the American Immigration Lawyers Association and many other groups--both national, regional, and local in character--provide direct support to such migrants. Indeed, Trump's most fanatical supporters are already going after groups like Catholic Charities for helping illegal migrants. Would Trump and his officials try to arrest and detain Americans working for those groups via Section 1021(b) or perhaps other authorities?

The infamous internment of Japanese Americans over 80 years ago--a civil liberties atrocity largely repudiated by the Supreme Court until just six years ago--should serve as a forceful reminder that the law and Constitution can be subverted completely by a chief executive's use of raw political and coercive power.

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