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The NDAA is Much Less “Fixed” than they Claim

January 7th, 2012 · No Comments ·

Once president Obama signed the National Defense Authorization Act (NDAA) it appears that word went out to all of the Senators and Representatives who voted for it that the bill was fixed and they should write their constituents reassuring them that it the bill no longer authorized the indefinite detention of US citizens inside our borders by the military on presidential order and without due process of law.

So the reassuring emails were sent to all the constituents who had lobbied against the passage of the bill with the military detention provisions included, and a lot of them were pacified by these earnest statements from legislators who likely either did not read or did not understand the totality of the NDAA as it was finally passed. They were convinced that the addition of the statements “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens” (1021.e) and “The requirement to detain a person in military custody under this section does not extend to citizens of the United States” (1022.b.1) actually fixed the problems with the bill.

What they failed to understand is that the first statement is meaningless because the authors of the bill and the president believe that they already had the power to detain civilians in military custody without due process even before this bill was passed, and that the second statement still uses the term “requirement” which means that while military detention of US citizens is not required in all cases as it is with foreign citizens, it is still an option if ordered by the president.

All they had to do to actually fix this bill was change the phrase “not required” in the original language to “prohibited” when referring to the military detention of US citizens and all of the complaints would have been satisfied. That they did not do this when every expert had told them it was the simple and obvious solution and that they instead engaged in misdirection and false assurances, demonstrates a cynical attitude towards the intelligence of the outraged public which had been loudly lobbying against this aspect of the NDAA.

While reassuring letters from Congressmen may have won over some former opponents, they are not fooling civil liberties lawyers who have actually read the bill and looked at the final wording in context. You don’t have to take my word for the persistence of military detention in the legislation because plenty of legal experts are speaking out against it. Sadly they don’t have the platform or authority of a letter from your trustworthy hometown Congressman.

On Justia.com Professor Joanne Mariner, director of the Hunter College Human Rights Program and formerly with Human Rights Watch, writes of the NDAA:

“Notably, section 1022(b)(1) does not exempt American citizens from the more important provisions in section 1021, which allow the military detention of broad categories of terrorist suspects. It does not, therefore, improve on the status quo by extending any new protections to Americans.

“Moreover, the specific exemption for American citizens in section 1022 could be understood as suggesting, by negative implication, that American citizens are covered by section 1021. Potentially reinforcing this view is the fact that an effort to amend section 1021 to exempt citizens failed in the Senate. If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative.”

And she dismisses the supposed promise of protection for US citizens from changes in the law, writing:

“the provision’s reference to “existing law” begs far too many questions. It is precisely the scope of existing law that is subject to vociferous debate and continuing litigation. Under the Bush administration, the law was interpreted to allow the indefinite detention of both citizens and non-citizens arrested anywhere in the world, including the United States.”

Benjamin Wittes, who is a senior fellow in Governance Studies at The Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security, writes in his FAQ explaining the NDAA that our rights were already essentially gone in practice and that the NDAA just formalizes this situation:

“The NDAA is really a codification in statute of the existing authority the administration claims. It puts Congress’s stamp of approval behind that claim for the first time, and that’s no small thing. But it does not–notwithstanding the widespread belief to the contrary–expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect.”

Although he does write off most of the concerns with the NDAA as being based on its ambiguities and ultimately left up to determinations by the courts, he also raises the additional concern that “the NDAA could theoretically be said to expand detention authority involves people held on the basis not of membership in an enemy group but mere support for one,” validating the concern that the applicability of military detention could be expanded to include people with no direct involvement in any terrorist activity.

In its press release on the signing of the bill, the ACLU is much more definitive about its concerns, quoting ACLU Executive Director Anthony D. Romero:

““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.”

And stating that:

“Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody, and many in Congress now assert that the NDAA should be used in the same way again.”

What is clear from reading all of this analysis of the bill is that although the final revision successfully muddied the waters, it did not fix the basic concerns with military detention of US citizens. That the government believed they already had the power before the passage of the NDAA does not excuse the authors of the bill from responsibility for formally codifying this practice.

It does to some degree reframe the debate, however. The argument is now much more basic, between those who believe that the NDAA should have been used as an opportunity to prohibit military detention and protect the rights of citizens, and those – like most members of Congress – who seem perfectly comfortable with giving the president the power to suspend foundational legal principles like Posse Comitatus and Habeas Corpus when even a hint of association with terrorism is involved.

Dave Nalle has worked as a magazine editor, a freelance writer, a capitol hill staffer, a game designer and taught college history for many years. He now designs fonts for a living and lives with his family in a small town just outside Austin where he is ex-president of the local Lions Club. He is on the board of the Republican Liberty Caucus and Politics Editor of Blogcritics Magazine. You can find his writings about fonts, art and graphic design at The Scriptorium. He also runs a conspiracy debunking site at IdiotWars.com.

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