18 January, 2012
Why the NDAA is Unconstitutional
Each year, Congress authorizes the budget of the Department of
Defense through a National Defense Authorization Act (NDAA). The NDAA of
2012, however, is unlike any previous ones. This year’s legislation
contains highly controversial provisions that empower the Armed Forces
to engage in civilian law enforcement and to selectively suspend due process and habeas corpus, as well as
other rights guaranteed by the 5th and 6th Amendments to the U.S.
Constitution, for terror suspects apprehended on U.S. soil. The final
version of the bill passed the House on December 14, the Senate the
following day (ironically, the 220th birthday of the Bill of Rights). It
was signed into law by President Obama on New Year’s Eve. With his
signature, for the first time since the Internal Security Act of 1950
and the dark days of the McCarthy era that followed, our government has
codified the power of indefinite detention into law.
This pernicious law poses one of the greatest threats to civil
liberties in our nation’s history. Under Section 1021 of the NDAA,
foreign nationals who are alleged to have committed or merely
“suspected” of sympathizing with or providing any level of support to
groups the U.S. designates as terrorist organization or an affiliate or
associated force may be imprisoned without charge or trial “until the
end of hostilities.” The law affirms the executive branch’s authority
granted under the 2001 Authorization for Use of Military Force (AUMF)
and broadens the definition and scope of “covered persons.” But because
the “war on terror” is a war on a tactic, not on a state, it has no
parameters or timetable. Consequently, this law can be used by
authorities to detain (forever) anyone the government considers a threat
to national security and stability – potentially even demonstrators and
protesters exercising their First Amendment rights.
One popular myth surrounding this law (which has been marketed well
by the White House and the mainstream media) is that it does not pertain
to U.S. persons (citizens and resident aliens). While the law does not
explicitly target U.S. persons, it neither excludes nor protects them.
Section 1022 of the law covers U.S. persons. The section allows for
open-ended executive judgment with regard to the handling of U.S.
persons. In other words, the detention of U.S persons is optional,
rather than a requirement as it is for non-U.S. persons. Jonathan
Turley, legal scholar and professor at George Washington University,
explains that “the provision merely states that nothing in the
provisions could be construed to alter Americans’ legal rights. Since
the Senate clearly views citizens are not just subject to indefinite
detention but even execution without a trial, the change offers nothing
but rhetoric to hide the harsh reality.”
Regardless of whether or not this law is interpreted as applying to
U.S. persons, by specifically targeting foreign nationals, the NDAA
violates the “equal protection” clause of the 14th Amendment, which
guarantees that all people be treated the same under the law. Therefore,
any way you slice it, this law is unconstitutional.
Accompanying the President’s signature was a signing statement which
was intended to clarify some of his perspectives on the NDAA’s most
controversial language. The statement read in part, “my administration
will not authorize the indefinite military detention without trial of
American Citizens.” However, what is important to keep in mind here is
that the statement refers only to what this administration
pledges, not to the intentions or requirements of future
administrations. As television host and political commentator Rachel
Maddow put it in recent segment, “you now live in a country where,
technically at least, the military has a legal role to play in civilian
law enforcement.” Dr. Maddow pointed that while this may or may not be
invoked during the present administration, “thanks to this bill…if this
president changes his mind or some other president in the future does
want to arrest Americans and lock them up in military custody forever
without trial, our government statutorily now claims that as its right.”
Although more than two-thirds of the House voted in favor of the
NDAA, not every member was on board with it. Rep. Dennis Kucinich (D-OH)
remarked that “what this bill does is it takes a wrecking ball to
the United States Constitution.” Rep. Paul Tonko (D-NY) described this
bill as a threat to “the inalienable due process rights afforded to
every American citizen under the Constitution.”
The NDAA’s draconian detention provisions have received most of the
attention, effectively overshadowing the fact that this legislation
continues a trend of spending vast sums of taxpayer money on so-called
“defense” objectives. According to Senator Bernie Sanders (I-VT), one of
only 13 members of the Senate to vote against the NDAA, “the bill
continues to authorize heavy spending on defense despite the end of the
9-year-old war in Iraq. Ironically, the Senate vote came on the same day
when Defense Secretary Panetta was in Baghdad officially declaring that
our military mission there has ended and that virtually all of the
combat troops will leave Iraq by the end of the year. At a time when we
have tripled defense spending since 1997 and spend more today on
defense than the rest of the world combined.”
The executive branch has acquired greater authoritarian and
unaccountable power under this law which disaffirms justice as a
fundamental human right. It brings the illegal practice of extraordinary
rendition home. Tom Parker of Amnesty International USA argues that the
NDAA “provides a framework for ‘normalizing’ indefinite detention and
making Guantanamo a permanent feature of American life.” What democracy
and civil liberties we did enjoy in this country before the NDAA of 2012
became law have been severely weakened, and our nation’s moral and
legal credibility in the world, which has been gradually declining since
the so-called “war on terror” was declared by President Bush, has been
diminished further.
The NDAA of 2012 increases the United States’ worldwide detention
authority. In doing so it further entrenches a culture of war in
American society. According to the American Civil Liberties Union
(ACLU), “The statute is particularly dangerous because it has no
temporal or geographic limitations, and can be used by this and future
presidents to militarily detain people captured far from any
battlefield… the breadth of the NDAA’s detention authority violates
international law because it is not limited to people captured in the
context of an actual armed conflict as required by the laws of war.”
As difficult as it might be to have any faith left in the Congress,
there is hope on the horizon for overturning at least the portion of the
law that threatens U.S. persons. The Due Process Guarantee Act of 2011,
H.R. 3702, authored by Rep. John Garamendi (D-CA) and Martin Heinrich
(D- NM) and currently co-sponsored by 32 House members, including the
ranking members of the Armed Services, Foreign Affairs, and Judiciary
committees, clarifies existing U.S. law and states unequivocally that
the government cannot indefinitely detain American citizens or lawful
U.S. residents. It ensures that U.S. citizens and permanent residents on
American soil are protected. The bill amends the Non-Detention Act of
1971, clarifying that a congressional authorization for the use of
military force – such as that in the NDAA which included the detainee
provisions – does not authorize the indefinite detention without charge
or trial of U.S. citizens apprehended on U.S. soil. H.R. 3702 is
companion legislation to Senator Dianne Feinstein’s Due Process
Guarantee Act of 2011, S. 2003.
Since 2001, the Patriot Act, the AUMF, and now the National Defense
Authorization Act of 2012 have eroded many of our most valued
constitutional rights. Our nation is moving away from government “of the people, by the
people, for the people” and toward a totalitarian state. The late
historian, Howard Zinn observed, “Terrorism has replaced Communism as
the rationale for the militarization of the country [America], for
military adventures abroad, and for the suppression of civil liberties
at home. It serves the same purpose, serving to create hysteria.”
It is up to the American people to stop this fear-mongering and this
unfettered growth of the military industrial complex. How? Americans can
begin by actively dissenting against laws that violate their
Constitution and their conscience. Dr. Zinn believed very strongly that
“dissent is the highest form of patriotism.
If the Constitution is to be defended against those who aspire to
destroy it, all Americans have a duty to themselves and their country to
stand up and demand progressive change toward a culture of peace and
justice. One of the most effective ways to do this is by engaging in
methods of nonviolent direct action, as demonstrated by the Occupy Wall
Street movement. As more Americans embrace these methods and the Occupy
movement grows stronger, Washington will be forced to end its campaign
of militarizing law enforcement and American society or risk being voted
out of office. Only then can the freedoms and civil liberties the
people are promised in the Constitution be restored.
Brian J. Trautman is a military veteran and an instructor of peace and world order studies at Berkshire Community College located in Pittsfield, MA. He is an active member of Veterans for Peace and Berkshire Citizens for Peace and Justice.
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