This is the first in a three-part FAQ about the National Defense Authorization Act (NDAA). See Part II: “Torture enabling expanded detention: The NDAA in context” and Part III: “What comes next? The future of the NDAA.”
Ten years ago, Congress enacted a draconian law with no transparency, regard for process, or even awareness of the profound erosion of constitutional rights that it—the PATRIOT Act—would entail. Congress did it again this holiday season, repeating its abdication of its constitutional role by authorizing, in the National Defense Authorization Act, indefinite military detention of even US citizens. The NDAA, however, has older precursors than the PATRIOT Act: the bill recalls shades of central Europe in the 1930s, long predating the pervasive surveillance enabled over the past decade. It also stands at the crux of several fundamental questions: it owes its genesis to the Obama Administration’s political cowardice and lawlessness in resigning executive accountability for torture. Finally, the NDAA presages the recurrence of torture, as well as the false legitimacy that it confers on a system designed to coerce confessions.
I’ll explain each of these concerns over a 3-part series formatted as an FAQ.
Q: Does the NDAA authorize political repression? A: It certainly could. Ignore the self-assured claims by the bill’s apologists downplaying what it means. Concerns about the NDAA’s potential (dare I say predictable?) abuse stem from beyond the four corners of the NDAA itself. The key is the PATRIOT Act’s extension of “material support for terrorism” to include associational and speech crimes, even where the defendants had no intention of supporting violence. In Humanitarian Law Project v. Holder (2010), the Supreme Court denied a First Amendment defense to the terror prosecution of a charity whose offence entailed funding workshops encouraging non-violence in Turkey (in the same Term that the Supreme Court held that corporations do enjoy a First Amendment right to buy elections). Under the Humanitarian Law Project ruling, as I’ve written before:
The PATRIOT Act’s material support provisions allow our government to criminalize speech and repress political dissent, a frontal assault on the First Amendment. And with material support cases grounded in associational guilt, the First Amendment is also eroding from its figurative sides. The NDAA would expand those assaults by eliminating the need to prosecute. In the hands of a president, attorney general, US attorney, or even, potentially, state or local prosecutors willing to use their powers for political purposes, it offers the legal authority for severe repression. Ironically, groups most likely at risk for military detention represent diverse interests: the Occupy movement has been addressed as a terror threat by London police and various critics in the United States, and Tea Party groups have raised concerns about counterterrorism scrutiny of militia movements [and Ron Paul supporters].
If Occupy and Tea Party groups are treated as terrorists, does that render them among the “associated forces” of groups “engaged in hostilities against the United States” for whom the NDAA authorizes military detention without trial? Just to be clear: no one has a good answer here, which is precisely the problem. Even within the four corners of the NDAA itself (here’s the full text of the bill), section 1031(b)(2) includes among “covered persons” subject to potential military detention “any person who has committed a belligerent act….” What, exactly, is a belligerent act? “Hostile” and “aggressive” are synonyms, and while the term has an established (though not entirely defined) meaning in the context of international war, its precise meaning in the context of the NDAA remains unspecified.
Two weeks ago, several Occupy sites on the west coast shut down a series of ports in coordinated acts of non-violent direct action. Were a foreign country to blockade our ports, it would certainly constitute a “belligerent act” under the laws of war. But what if it’s US citizens who conduct the blockade? What’s the answer then? That’s the point: no one knows. Any assurances that future officials will not apply these dangerously overbroad terms to US citizens is grounded in conjecture. Wishful thinking is a poor substitute for the thoughtful deliberation Congress should undertake when toying with powers of such potentially sweeping scope.
Apologists for the NDAA forget that laws remain fixed until changed, beyond the terms of particular officials who write them. And the ambiguity created by the law could be construed by future Presidents (or their advisors) to confer dramatic, sweeping powers to detain US citizens without a right to trial or Due Process. In the wrong hands, it could be used as a powerful tool to suppress dissent, with predictably catastrophic consequences. Finally, provisions seeming to limit the NDAA’s potential reach should offer little comfort. For example, Section 1031(d) includes a proviso that “nothing in this section is intended to limit or expand the authority of the President….”
But presidents have already asserted the authority to detain US civilians in military custody. Just ask Jose Padilla.
Another red herring emerges in section 1032(b)(1): “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” That’s a welcome change from earlier versions of the NDAA, but it doesn’t constrain the discretionary authority to detain US citizens created separately (by section 1031). So believe the hype: the NDAA’s detention provisions represent a frontal assault on the Bill of Rights. They are noxious now. They will be worse in the future. We will live to regret ever even considering this law, and our leaders will be judged harshly for allowing it to become law without even a single congressional hearing and over the objections of concerned Americans all over the country.