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.
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.
(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.
(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."
(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;"
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."
- President Obama Signed the National Defense Authorization Act - Now What? (forbes.com)
- The 2013 NDAA Signing Statement: No Better Than the 2012 Version (lawfareblog.com)
- The NDAA and the Death of the Democratic State (commondreams.org)
- Military Detention Law Blocked by U.S. Judge in New York (bloomberg.com)
- NDAA & CISPA Are Back: New Controversies Emerge Over Laws Concerning Rights (ibtimes.com)
- A letter to my family and friends about the NDAA and me. (alexaobrien.com)
Take a moment to tell your friends and family about what is going on.