When Power is Unaccountable

Why the NDAA is Unconstitutional

by BRIAN J. TRAUTMAN

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.”

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