The National Defense Authorization Act for the Fiscal Year 2012 (NDAA) has been incredibly controversial.  Although it might seem controversial because it allows for the indefinite detention of an individual suspected of terrorism, the real controversy lies in how one views the nature of terrorism itself.

No two government agencies agree on what terrorism is.  The first place to start in this debate, as an expert will tell someone, is to define exactly what terrorism is.  The word terrorism started during the French Revolution, where it was used as a positive term that denoted re-establishing order and justice by the state.  Yet, today the FBI says that terrorism is “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objective.”  The U.S. Department of Defense defines terrorism as “[t]he unlawful use of violence or threat of violence to instill fear and coerce governments or societies.” The best workable definition, though, comes from America’s pre-eminent expert on terrorism, Bruce Hoffman.  He defines terrorism as the “deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change” by sub-state actors (Hoffman, Inside Terrorism, pg. 40).

Is terrorism merely a crime, the same as organized crime or mass murder?  Or is terrorism an act of war, a particular form of sub-state violence that replicates a state’s military?  If terrorism is a simply a crime then the NDAA is unnecessary.  However, if terrorism is an act of war then the government has the right to detain suspects of terrorism as prisoners of war.

The American Civil War and several little-known court cases had a great affect on America’s conceptualization of the ‘War on Terror’. (A side note: although I disagree with the designation ‘War on Terror’ because it would be like calling World War II the ‘War on Blitzkrieg’ or the ‘War on Kamikazes’; I use it because it is the popular term.)  The Supreme Court decided the Prize Cases in 1863 after President Abraham Lincoln blockaded the Confederacy without a formal declaration of war.  The Supreme Court ruled “[a] state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war.”  Furthermore, the Court ruled that “[t]o create this and other belligerent rights as against neutrals, it is not necessary that the party claiming them should be at war with a separate and independent power” and “[a]ll persons residing within the territory occupied by the hostile party in this contest are liable to be treated as enemies.”  These three statements help shape the paradigm in which Americans view the present War on Terror and its conceptualization.  A little back history of the ‘War on Terror’ will help further contextualize how the Prize Cases apply.

On September 11, 2001, al-Qaeda operative attacked the United States by flying planes into the Twin Towers and the Pentagon.  Al-Qaeda was (and is) an international, terrorist organization that promotes an Islamist, anti-American agenda.  America never declared war on al-Qaeda, but the terrorists’ attacks on America and their own declaration of war against the US created a “state of war,” which fulfills the first part of the quoted Prize Cases.  Second, al-Qaeda is a sub-state actor; it does not have the rights and privileges of a state in the course of war.  America is at war with a non-state actor.  Finally, because al-Qaeda is not a state, nor does it own territory, the best application of the third quote is to say that all who are part of al-Qaeda or give it aid should be considered an enemy of the US.

Now, returning to the NDAA.  Considered within the context of the Prize Cases and the Supreme Court’s ruling, the act does nothing more than codify what the Court already ruled and how America views terrorism.  Terrorism is an act of war, and those who engage in it should be treated as soldiers.  However, because terrorism is an illegitimate and illicit form of violence and warfare, these soldiers cannot be given the same privileges as those who comply with the Geneva conventions and international standards.  Indefinite detention is allowed because, although terrorists are soldiers, they do not follow the rules of war.  The NDAA only calls for the detention of those people who are part of al-Qaeda, help al-Qaeda, or fight against coalition forces in the current war zone.  This side of the NDAA is appropriate legislation because it operates within the current war America is fighting against al-Qaeda and detains those who side with the enemy.