Would it really be possible to burn and circumvent basic constitutional rights without much of the American public even noticing? The National Defense Authorization Act (NDAA) could be poised to do just that by allowing the U.S. federal government to treat its citizens as enemy combatants. But only if the government claims that those citizens are a threat to national security, so don’t worry, really.
The NDAA is legislation that has been passed by the federal government for each of the past 48 fiscal years. The act establishes the budget, logistics and organization of the Department of Defense for that given year. It’s nothing less than remarkable, in the most disturbing way possible, then, that a tedious, business-as-usual act could be home for loop holes in such a fundamental American right as habeas corpus.
H.R. 1540: National Defense Authorization Act for Fiscal Year 2012, as passed by the House on Dec. 15, still contains the provisions that have garnered criticism, outrage and panic from citizens and groups like Oath Keepers, Infowars and Anonymous. While it is much less threatening than previous versions, the criticism falls largely on Subtitle D – Detainee Matters, especially in sections 1031 and 1032.
Section 1031 subsection A reaffirms the president’s authority to use “all necessary and appropriate force pursuant to the Authorization for Use of Military Force,” which includes the power “to detain covered persons … pending disposition under the law of war.” Subsection B gives the definition of “covered persons” as any person (which of course would include U.S. citizens by the wording) that aided in 9/11 or supported “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”
What “disposition under law of war” means is that someone accused of affiliation with a terrorist group can face “detention under the law of war without trial until the end of the hostilities,” or a military trial, where citizens aren’t guaranteed rights such as trial by a jury of peers.
The only difference between being treated as a citizen and an enemy combatant becomes the accusation by the executive branch that you aided or abetted terrorists.
Here’s where things get confusing. Section 1031 subsection E was added, which states, “Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens … or any other persons who are captured or arrested in the United States.” But Section 1032 subsection B, Applicability to U.S. Citizens and Lawful Resident Aliens is specifically included to note that the executive branch is not required to treat citizens as enemy combatants. Stripping a citizen of rights is, instead, purely optional.
But the most appalling apart of the NDAA is seemingly snuck in with semantics. Section 1032 also includes subsection A, paragraph 4, Waiver for National Security, which apparently allows the Secretary of Defense to waive the requirement criteria of being terrorist-affiliated. And paragraph 3 says that section 1032’s definitions apply to section 1031, the section that stated that the rights of U.S. citizens wouldn’t be affected.
It’s enough to make heads spin.
In a congress that can’t stop bickering long enough to pass a budget that keeps the nation afloat, it is shocking that the U.S. senate can readily unite against liberty in a 93-7 vote in favor of such a massively unpopular bill. They’ve repeatedly said how badly we need a more flexible detention policy for national security, but at what cost? Are they supposed to listen to each other, or to us? President Obama had promised to veto the bill, but on Dec. 14 the White House announced that it would not be vetoing the bill.
The good news is that provisions were added to attempt to make NDAA apply less to U.S. citizens, and language was removed from the bill in July that would have allowed the federal government to use military forces anywhere there were terrorism suspects, which would’ve authorized military operation on U.S. soil.
But controversial sections 1031 and 1032 remain, and the fact that this year’s NDAA used to be even worse seems like little consolation. The reality is that, even as a compromise, this act is a threat to constitutional rights and a massive step in a horribly wrong direction. This is an abusive expansion of presidential power.
A petition exists to lobby for the president to veto the bill, but after the formal announcement that he no longer intends to do so, it seems in vain. Instead, concerned citizens can do their part by staying informed and alert for any further legislation and staying actively engaged in government. We can each do our part by writing to our congresspersons to make sure that our voices are heard.