Why you should care about the National Defense Authorization Act

*This is a long post.  But its length reflects the importance of its topic.  I hope this discussion communicates the complexity of the NDAA and the significance of the law’s implications.

The National Defense Authorization Act (NDAA) was signed into law by President Obama on December 31.  This bill is passed yearly to determine the budget for the Department of Defense, but this year it also contains short but sweeping provisions that affect ordinary Americans and expand the scope of the executive branch’s power.  Civil rights groups, military officials, and others have expressed concerns about this law, fearing that it infringes on the rights of Americans and hampers America’s ability to fight terrorism.

American Civil Liberties Union (ACLU): This law “contains harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world.”

Glenn Greenwald of Salon.com: “It will be the first time that the United States Congress has codified the power of indefinite detention into the law since the McCarthy era of the 1950s.”

New York Times Editorial: “The measures… will strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists and hand it off to the military, which has made clear that it doesn’t want the job.”

These criticisms of the law seem outrageous and scary, if they are indeed true.  As I hope to explain clearly through this Q&A-style post, these claims about the NDAA are true, meaning that we, as Americans, have lost some of the basic rights that make our country the free place we believe it to be.

1) What exactly do the NDAA’s “harmful provisions” say?

Sections 1021 and 1022 are the provisions that concern the ACLU, the New York Times, Glenn Greenwald, and me.

Let’s look at the first section (p. 265)  It authorizes the president and armed forces to detain the following people:

These individuals can be detained indefinitely without charges or trial, until the end of the War on Terror:

Now let’s look at Section 1022 (p. 266), summarized by Glenn Greenwald, the Salon.com columnist and former constitutional and civil rights litigator:

“[Section 1022] mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032).”

Here’s the text from the provision specific to US citizens:

2) Why are these provisions problematic?

Let’s look at the portions that were highlighted above by Greenwald.

“Substantially supported;” “associated forces”:  These phrases are extremely vague, and can be interpreted widely by those enforcing the law: the president and the military.  How can one determine what “substantially supporting“ a group means?  (See Question 8 for a more detailed discussion on this point.) How can one determine if a group is “associated” with al-Qaeda?

This broad language was likely intentional, written to bring the law in line with the Obama and Bush administrations’ post-9/11 policy of indefinitely detaining individuals without trial.  (See Question 6 for further discussion.)

“Without trial until the end of hostilities”: The line doesn’t need much elaboration.  A detainee held without charges and trial doesn’t need to be released until the end of the war, in this case, the War on Terror. But how do we know when the War on Terror has been won?  When all terrorists are killed?  When anti-American sentiment has been quashed?  (In my opinion, more American military action yields more anti-American feelings and contributes to the creation of terrorist groups.)

“Military custody”: Those detained are not held by civilian law enforcement, but by the military, no matter if they were captured in a war zone or an American neighborhood.

“The requirement to detain a person…does not extend to US citizens”:  This new law affects both foreigners and American citizens.  Foreigners must be held by the military.  US citizens are not required to be held by the military, but the option is still there.  This means that Americans are not protected from indefinite detention.  They can be subjected to it without formal charges for their supposed support of terrorism.

It is important to note that, under existing American law, even non-citizens are guaranteed the right to a trial.  The NDAA strips away that right as well.

The full issue is a long, complicated one, and Glenn Greenwald has done a good job answering it in his article, “Three myths about the detention bill.”

3) Indefinite detention seems wrong.  Don’t we have laws that should protect us from that?

Yes, the Fifth and Sixth Amendments.  The fifth guarantees due process, and the sixth a speedy and public trial.

4) This talk of indefinite detention rings a bell.  Has Congress passed a similar provision before?

Yep.  Glenn Greenwald:

“This is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention).

5) I heard that President Obama was going to veto this law.  Why did he threaten to veto and then change his mind?

Initially, the Obama Administration objected to a portion of an earlier draft of the bill that would exempt accused US citizens from mandatory military detention.  Why would it urge the drafters to take out this portion?  Greenwald and many argue that the administration wanted to increase its own power to determine who and how is detained.  Greenwald:

“This was an example of the White House demanding greater detention powers in the bill by insisting on the removal of one of its few constraints (the prohibition on military detention for Americans captured on U.S. soil). “

The current version of the law—the one that passed and was signed by Obama—has the new provision I mentioned in Question 2: US citizens aren’t required to be detained by the military, but they still can be.

Greenwald: “Those changes were almost entirely about removing the parts of the bill that constrained his power, and had nothing to do with improving the bill from a civil liberties perspective. Once the sole concern of the White House was addressed — eliminating limits on the President’s power — they were happy to sign the bill even though (rather: because) none of the civil liberties assaults were fixed.

6) Didn’t the Bush and Obama administrations indefinitely detain Americans before this law was passed?  How does this law change anything?

In practice, the law changes little.  Obama, like Bush before him, claims that the president possesses the authority to detain Americans indefinitely.  (See Question 7 for more details.) These administrations have detained many Americans (and even more foreigners) without charges and held them.  This law only codifies this practice into law—protects it—and that’s what is scary and dangerous.

7) What gives the President and the military authority to indefinitely detain people?

According to Bush and Obama, the 2001 Authorization to Use Military Force (AUMF), which was passed by the Congress just days after September 11, 2001.  Here’s an excerpt from the AUMF:

Greenwald: “…First the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces” (whatever those terms mean). That’s why this bill states that it does not intend to change the 2001 AUMF (even as it codifies far broader language defining the scope of the war) or the detention powers of the President, and it’s why they purposely made the bill vague on whether it expressly authorizes military detention of U.S. citizens on U.S. soil: it’s because the bill’s proponents and the White House both believe that the President already possesses these broadened powers with or without this bill. With a couple of exceptions, this bill just “clarifies” — and codifies — the powers President Obama has already claimed, seized and exercised.

8) I’ve heard that this law also threatens free speech.  How so?

Let’s go back to the brief discussion about what it means to “substantially support” al-Qaeda or terrorist groups.  As I said, this term is extremely vague, and as Greenwald has argued above, this vagueness is likely intentionally so.

Generally, we understand “support” to mean material support—giving weapons, money, etc. However, a 2010 Supreme Court case changes all that—a case that went virtually unnoticed despite its surprising verdict and widespread negative implications.

In Holder vs. Humanitarian Law Project, the US Supreme Court ruled that ‘speech’ given in support of an organization is the same as ‘material support.’  This decision was made to match similar rulings in the UK, where free speech is not guaranteed in the way it is in the US.

This ruling, coupled with the practices of indefinite detainment and the NDAA, greatly endangers the First Amendment and free speech.  If speech equals material support, and material support is a detainable offense, then speech, simply speech, is a crime.  And a crime that doesn’t result in a fair trial or even formal charges.

In my opinion, this is what makes the NDAA’s implications so frightening.  For engaging in what should be free speech, an American can be rounded up and held.  For simply being “associated” with terrorist groups, an American can be detained.  And because these Americans are held without formal charges and aren’t guaranteed to see court, it will never be truly known if those detained were actually “guilty.” 

9) Why should I care about the NDAA and the practice of indefinite detention?

Many Americans citizens, and even more non-citizens, have been affected.

Look at Murat Kurnaz, a German who was held in Guantanamo without charges for five years.

And Sami al-Arian, an American and outspoken Palestine activist.  He was detained and treated horribly in civilian prisons on terrorism charges.  Most of the evidence brought against him in his eventual trial were things like books he own and things he said. 

And Tarik Mehanna, who translated al-Qaeda documents into English for American readers.  Despite that this action is in the realm of free speech, he was arrested and tried in a civilian court for them.

All Americans, myself included, have the potential to be affected by the NDAA.  If the government decided that I somehow had ties to or supported terrorism because of books I read or things I said, I could be locked up.

Sadly, though, this law will likely be only used to target Muslims, people like Kurnaz, al-Arian, and Mehanna.

Non-Muslim Americans who advocate violence and terrorism will probably not be targeted.  People like a middle-aged American who commented on my YouTube account, calling for Muslims to be expelled from America.  When I went to his YouTube page, I found a video in his “Favorites” list, called “Top 10 Mosques to Bomb.”  This man was supporting violence against Muslims.  I called him out on it, and he removed the video.  (Click the photo to the right to see the conversation I had with this man.)

I want to make this very clear: violence and terrorism are both wrong.  I don’t support violence and terrorism, and I condemn those who do. But a Muslim’s verbal support of these tactics should not be more punishable than a non-Muslim’s.

As I’ve talked to friends and professors about the NDAA, I’ve heard a one main concern expressed, one beyond specifics of the bill and its possible uses.  What does it means for our country when our legislators and our executives are able to sit around and discuss taking away some of our most basic rights, as if it doesn’t matter? There have been dissenting voices, but there is no loud outcry. As Americans, we pride ourselves on our freedoms, and want to spread them to the ends of the earth.  Ironic, given that we’ve done away with many of them.

The NDAA needs to receive much more critical media attention if we hope to preserve the rights we still have and regain the ones we’ve lost.  I hope this post can contribute in some small way to the national discussion we must have about the NDAA.

10) What can I do about this?

Contact your legislators and ask them to vote for the Due Process Guarantee Act.  In the wake of Obama’s passage of the NDAA, Senator Dianne Feinstein (D-CA) proposed this bill to amend part of the law and protect American citizens.

It says: “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States.” (See the entire bill here.)

This bill doesn’t fix the entire problem, but it goes along way in addressing the issues of the NDAA.

Have any questions I didn’t answer?  Ask them in the comments section.