Tuesday, January 17, 2012

NDAA's Critics are Wrong

By CJ Louis


Many people have somehow gotten the idea that certain sections of the National Defense Authorization Act (NDAA) stifle our civil rights by allowing for the indefinite detention of American citizens on the mere suspicion that they are loosely affiliated with Al-Qaeda or if citizens simply decide to openly oppose the government. This is not true.

The NDAA for people who don’t know anything at all, is a law passed annually for the past 50 years. At its core, it’s a piece of defense legislation that simply details the spending budgets and authority of our Defense Agencies. Sometimes, things are added in to detail specific projects or initiatives that the Federal Government is taking on at the time. This year is the first time it has received such widespread international attention from the masses. Why? I won’t make any unfounded assertions, but it’s no mystery that the President has been on thin ice ever since he was sworn into the White House because of this and every move he makes is under intense scrutiny, and with good reason, because our nation is in a very delicate state.

The National Defense Authorization Act of Fiscal Year 2012 is controversial among the general public mainly for the following two portions of the legislation:

  1. Subtitle D – Counterterrorism: Section 1021: Affirmation of the Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force (AUMF).
  2. Subtitle D – Counterterrorism: Section 1022: Military Custody For Foreign Al-Qaeda Terrorists.
A little context: three days after the attacks on September 11, 2001, Congress passed a joint resolution known as the Authorization for Use of Military Force (AUMF), which was signed into law by then-President George W. Bush on September 18, 2001. The AUMF granted the use of our military against those found to be responsible for the September 11th attacks on the United States and granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. The 2012 NDAA narrows and explicitly defines the scope of those people responsible and refer to them as “covered persons” in the following text:
  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.


Section 1021 restates authority already granted to the President through the passage of AUMF 10 years ago in “affirm[ing] that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force…includes the authority for the Armed Forces of the United States to detain covered persons…pending disposition under the law of war.”

The 2012 NDAA grants no authority regarding detention of terrorists and terrorist suspects not already in play several years before President Obama was elected. Critics have argued that theoretically a portion of this expands detention authority because it allows for people to be held on the basis, not of membership in an enemy group, but mere support for one; they are rightfully concerned about this language. Yet, as stated earlier, this was already possible under AUMF and subsequent broader interpretations of it by district courts since then.

So, at this point, I’m sure you have comprehended this well thus far and have been wondering, “If these powers were already in place 10 years ago, why would Congress include this seemingly repetitive language in the 2012 NDAA now?” The answer to that is this: the most important thing to note about Section 1022 is the Congressional approval of indefinite detention of “covered persons” without charge. When the AUMF was passed, Congress’s stance on indefinite detention was ambiguous at best. The power of indefinite detention was solely the President’s decision.

Yet, in placing this legalese in a congressional defense bill, Congress has given the practice of indefinite detention more meaning than just discretion granted to the Executive Branch, but also an extremely solid and explicit statutory basis by their endorsement which makes them as fully accountable in this area as the President. In essence, Congressional legal backing made indefinite detention less vulnerable to legal scrutiny and possibly a more permanent practice going forward.

As for Section 1022 of the 2012 NDAA, it requires mandatory detention of foreign al-Qaeda terrorists.

The part in question is Part B (Applicability to United States Citizens and Lawful Resident
Aliens), Points 1 & 2 which state:
  1. UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
  2. LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.


It is good that critics are keeping a watchful eye on legislation and their concern is somewhat warranted due to the justified lack of trust in government and the tricky wording in Point 2; however, Section 1022, Part B, Points 1 & 2 do not apply to any American citizen or legal resident of the United States. There are skeptics who say that outside of the US, citizens are more vulnerable to the scope of this law; they are not totally incorrect. Nevertheless, the focus of Section 1022 is clearly terrorism, as defined in the bill, and not conflict, armed or otherwise, with American citizens. Section 1022’s use of the word “requirement” has been interpreted by some critics as allowing U.S. citizens to be detained, but this provision does not in any way create this authority. Both sections explicitly cover Al-Qaeda members and members of groups that act in coordination with or under the direction of Al-Qaeda and cannot in any way be misconstrued to include innocent American citizens.

Admittedly, this bill does indeed trek a slippery slope; however, the government does not have to use military detention for anyone and when considering the provisions within, it provides enough legroom for the Administration to come up with a thorough, streamlined, legitimate and somewhat transparent process to accurately determine whether or not a person qualifies as a “covered person.” In case you couldn’t tell, that is good news.

In summary, I’m sure that after reading this some of you may still feel that President Obama should’ve just vetoed the bill in its entirety. I mean, who wants to walk on the mile high, quite lean tightrope between civil rights and human rights? Well, frankly, vetoing it would not have made any good political sense. The 2012 NDAA contains a lot of other measures besides these two sections; as I stated earlier, it is first and foremost a defense spending law. Vetoing the bill would’ve delayed government stipends to veterans, widowed military families, and etcetera as well as crippled our military operations domestically and in areas all over the world. And for what: political backlash? Because the bill would’ve certainly gone back to Congress and undoubtedly receive the two-thirds vote it needed to override the President’s veto. Except, things would be much different the second time around, in that the President would not be able to attach a signing statement. Without the statement, President Obama wouldn’t have any control of 2012 NDAA’s execution as a signing statement can be used as an executive directive of sorts. Having signed it into law and attaching his signing statement, the President can direct the controversial parts of the law to a standard according to his interpretation of the law. The signing statement is quite relevant in that it helps to create a format for the execution of the law during his Administration which without the entire world would be subject as is without any sort of discretion whatsoever. To make a long story short, the fact that it was signed is good news.


About the Author
CJ Louis

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