NDAA National Defense Authorization Act 2012

What is it?

The NDAA (or National Defense Authorization Act) is a piece of legislation passed every year to authorize the defense budget. Section 1021 of the 2012 NDAA has caused a quite a bit of controversy, with important figures on both the right and the left condemning it.

“ Due process would be a thing of the past. ”

-Charles C. Krulak and Joseph P. Hoar, four star generals, in a New York Times editorial.

“ 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. ”

-Anthony D. Romero, ACLU executive director.

“ By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law. ”

-Kenneth Roth, executive director of Human Rights Watch.

“ This is the kind of stuff that exists in third world banana republics. ”

-Rush Limbaugh, conservative talk show host.

The Law- Section 1021

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) IN GENERAL.-Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

This refers to the AUMF, passed shortly after September 11, 2001. The intention of the AUMF was to catch and prosecute the planners of 9/11, and those who harbored them- Osama Bin Laden, Al Quaeda and the Taliban.

Osama Bin Laden is dead. The US is now in talks with the Taliban after 10 years of war.

See the AUMF for yourself:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Full text of the AUMF

(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.

This paragraph starts out by reiterating the authority granted to the President under the AUMF, the power to detain those involved in the execution of the terrorist attacks of 9/11. It then expands this authority, extending it to allow him to detain any person that he feels has committed a belligerent act. What is a "belligerent act"?

The fact is that the term "belligerent" can be taken to mean many different things. This is one of the main criticisms of the law. What is a belligerent act? You'll have to ask the President.

Smith and Amash try (unsuccessfully) to clear things up:

In a rare example of bipartisan cooperation, Justin Amash (R-MI) and Adam Smith (D-WA) introduced an amendment to the 2013 NDAA that would have ensured that any person detained under the NDAA in the US would immediately be transferred to the jurisdiction of a constitutionally legitimate court, and preserve their right to a speedy and public trial.

Full Text of the Smith- Amash amendment

This was instead replaced by a vaguely worded amendment introduced by Louie Gohmert (R-TX) that promises the availability of a writ of habeas corpus “in a court ordained or established by or under Article III of the Constitution”. Since the NDAA allows for the indefinite military detention and transfer of suspects to any foreign country, this amendment does not appear to do much.

Full text of the Gohmert amendment (scroll down to section 1029 on page 286)

(c) DISPOSITION UNDER LAW OF WAR.-The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.

Pay close attention to (1)- "the end of hostilities authorized by the Authorization for Use of Military Force" refers to the undeclared "War on Terror". Basically, the President is required to release his detainees when the War on Terror ends. Since the War on Terror is indefinite, the 2012 NDAA allows the President to hold detainees indefinitely, without the requirement of a trial.

This would appear to directly contradict the 6th amendment requirement for a "speedy and public trial."

Click here to read the 6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

(d) CONSTRUCTION.-Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES.-Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.-The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be "covered persons" for purposes of subsection (b)(2). H. R. 1540-266

Read the full text of the 2012 NDAA here.

This seems to say: "this section of the law does not change anything." You may find yourself asking- "If that's the case, then why was it written?" The key is in the word authority. Since the President has already excersized the authority to take military actions against US citizens, with the extrajudicial assassination of Anwar Al-Awlaki in September 2011, this section simply codifies his power into law and applies it to U.S. soil.

Anwar Al-Awlaki was a US citizen who maintained a pro-jihadist online magazine and Youtube channel. He and his 16 year old son were killed remotely, by drone in Afghanistan. He was not charged with any crime, and did not receive due process.

The 5th amendment allows no person to "be deprived of life, liberty, or property, without due process of law;"

Click here to read the 5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

But this only applies to terrorists, right?

Supporters of the NDAA argue that the extraordinary powers given to the executive branch under this new law will only be used against "terrorists." This is all well and good, but our system of governance depends on checks and balances.

One of the most basic aspects of a free society is that the government can only imprison and kill those who:

Have been charged with a crime
Had an opportunity to defend themselves in court
Have been judged guilty by a jury of their peers

Under the NDAA, the only thing the goverment needs to do to detain you is call you a "terrorist".

When the executive branch can act as judge, jury, jailer (and in Anwar Al-Awlaki's case, executioner), our most basic system of checks and balances is broken.

Anwar-Al-Awlaki might have been a very bad guy, but what about his 16-year old son? They killed him too. What about the next person the executive branch kills or jails? And the next after that? And during the next administration? The only limit is the President's definition of "belligerent."