OPINION: The Danger of the NDAA

The 2012 National Defense Authorization Act is a perennial bill which appropriates money for military spending and research during the fiscal year. Over the past 48 years, this bill has been reauthorized 48 times and our military has been funded, virtually without a hitch. This year, the NDAA reauthorization has an amendment, crafted by Carl Levin and John McCain, which gives the US military and executive branch vast new powers to detain Americans. On New Year’s Eve, the amended NDAA was signed into law by President Obama.

The 2012 NDAA has several highly controversial amendments that have the potential to nullify many of the civil rights of everybody that the government accuses of terrorism. Section 1021 of the 2012 NDAA changes the jurisdiction of all terrorism related suspects to the military, while at the same time removes a vast majority of the protection given to these suspects.  At the same time that the NDAA would reassign jurisdiction of terrorism suspect to the military, it would also allow for transfers of these suspects to prisons in other countries for “interrogation”.

According to the wording of section 1021, anybody suspected of terrorism or performing a “belligerent act” against the United States would be subject to detention without trial for an indeterminate amount of time; these suspects would be classified as enemy combatants, who have no rights to a lawyer, open trial, or to confront their accuser. As there is not set definition as to what constitutes a “belligerent act”, this classification is open to terrible abuse by an immoral political actor.

Everybody, whether American or foreign, suspected of terrorism could be classified as an “enemy combatant”, regardless of citizenship, and lose their 5th 6th and 8th amendment rights. Currently, the classification of “enemy combatant” only applies to non-American citizens but the amended NDAA expands this classification to include American Citizens. Section 1022 of the 2012 NDAA states that, unlike with non-citizens, there is no “requirement” for the military to indefinitely detain American citizens; legally, the word “requirement” states that there is no compulsory rule that forces the government to act, rather it gives the government discretion. American citizens could be detained by the military if they are suspected of terrorism but, unlike non-citizens, they would have the “potential” to be transferred to civilian custody. The wording of the 1022 section does not bar the detention of Americans; rather it gives the executive branch the ability to choose which detained Americans are transferred to civilian courts.

Obama has written a signing statement which indicates that his administration will not detain Americans, thus proving that it is a possibility under the law, but this does nothing to bar future presidents from doing just that. The signing statement text clarifies the Obama administration position on the NDAA thus: “Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” The “my Administration” language demonstrates that while Obama will not indefinitely detain Americans, some other president may decide to in the future.

The NDAA would exclude terrorism suspects from being protected by virtually all of the rights guaranteed under the Fifth Amendment. Suspects would be detained without a grand jury indictment by a secret military tribunal, based upon the suspicions of military or intelligence officials. Once detained, the suspect would be held without due process of law and would have no right to invoke the Fifth Amendment in order to avoid self-incrimination; they would be interrogated and potentially tortured until they gave up information to the military interrogators.  Those detained would be held and interrogated for indeterminate amounts of time in an undisclosed location.

As enemy combatants, detained Americans would have none of the rights guaranteed under the sixth Amendment. Detainees would not be accorded the right to a trial, never mind a “speedy and public” one. As there is no trial, there is no way for an accused “combatant” to confront their accuser, call witnesses to their defense, or use the services of a lawyer. For all intents and purposes, the accused is held as a prisoner of war, where there is no defined enemy; with POWs, the soldiers are repatriated upon a treaty or victory, but without a defined enemy there can be no cessation of hostilities.

The NDAA amendment would completely disregard the 8th amendment as it regards to bail, and could bring about the use of abusive interrogation techniques on detained Americans. Under the “enemy combatant” status, a detainee is not entitled to bail at any amount and is automatically remanded into custody (not trial); what could possibly be more excessive than a blanket ban on bail for an entire class of suspect? While the judiciary has the right to remand dangerous individuals, the NDAA goes far beyond this in that regardless of evidence or history, all people suspected of a classification of crime are automatically remanded.

As shown by recent scandals, those classified as “enemy combatants” often have their human rights abused while in detention. During the Bush administration there was a pattern of abuse and torture directed at military detainees, all of which were not American citizens. If the NDAA were to pass in its current form, American citizens will be exposed to the same abuses as was seen perpetrated against past “enemy combatants”: water boarding, stress positions, sleep deprivation, loud noises, extreme temperatures sexual abuse, attack dogs, and beatings. The use of such tactics is not only wrong, but it acts as the perfect recruiting tool for our enemies and diminishes our standing in the international eye.

When fighting terrorism, we must simultaneously preserve our safety as a country, while preserving our values and liberties as a free society. The amended NDAA poses a threat against every American in that anybody, regardless of location, citizenship, or guilt can be detained without any of the rights guaranteed under the constitution. It doesn’t matter if you are innocent because under these new regulations, you would never be able to prove it; your only hope would be if the government decides that it is wrong about you and releases you or that you are rich and powerful enough that you can fight back in the public eye (I doubt that Bill Gates could be detained under this law).

Our founders decided that the government should not have the right to simply declare someone guilty and punish them accordingly; instead, the accused are given a trial where the final decision on guilt is left to a jury of citizens. The amended NDAA gives the government the powers of judge, jury, and executioner over anybody suspected of terrorism or providing help to terrorists; the massive expansion in the power of the military over civilian matters is a large and dangerous step towards a police state.