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.

Searching for our own Edward R. Murrow

Today, New York Representative Peter King held a second round of Congressional hearings concerning “Muslim radicalization in the U.S.” In an era when anti-Muslim rhetoric continues to spew unchecked from the mouths of presidential hopefuls and talking heads on cable, many others and I fear that these hearings are evidence that a new McCarthyism, one targeting Muslim-Americans, is taking root in America.

Generally, when my generation learned in school about McCarthyism in the 40s and 50s, we understood it to be a shameful period in our country’s history.  Looking back now on the McCarthy hearings, (which unfairly targeted thousands of Americans, labeling them falsely as Communists,) and the general tone suspicion that permeated our political and civil environment, we recognize that American leadership was acting in response to fears that were purposefully manufactured and inflated in order to be exploited for political gain.

But at Monday night’s GOP debate, the McCarthy hearings were referenced in quite a positive light as Newt Gingrich implied that the U.S. government should subject Muslim-Americans to the same kind of scrutiny that so-called Communist sympathizers experienced decades ago:

“We did this when dealing with the Nazis, and we did this when dealing with the Communists, and it was controversial both times, and both times we discovered after a while, ‘You know, there are some generally bad people who would like to infiltrate our country, and we have gotta have the guts to say, No.’”

In this context, as fear mongering and McCarthy-style hearings seem to be coming back in vogue, the words of Edward R. Murrow are all the more important to share and remember (see below).  Advocating for a return to reason and the abandonment of unnecessary fear, Murrow, a journalist, spoke out against the fear and suspicion encouraged by Sen. McCarthy and other public figures.  If we substitute Rep. King’s name for Sen. McCarthy’s in the following clip, Murrow could just as easily be speaking to us, the Americans of 2011, instead of the Americans of 1954.  Take a listen–let’s hope our own Murrow shows up soon.

Thoughts on King’s “radicalization” hearings

“I remember doing a number of radio interviews [right after 9/11] saying we can’t do to the Muslims what we did to the Japanese after Pearl Harbor.” (New York magazine)

Peter King at today's hearing

These are the words of Peter King, a long-time House representative from Long Island and the head of the House Homeland Security committee.  Before 9/11, he was an active supporter of his Muslim community; he even spoke and cut the ribbon at the opening ceremony of the Islamic Center of Long Island.  As his quote suggests, he was concerned that post-9/11 backlash would lead to unwarranted suspicion of Muslims and unjust government actions taken against the group as a whole.

However, today King seems to be encouraging the climate of mistrust he sought to avoid ten years ago.

This morning, the House committee on Homeland Security—of which King is the head— began a hearing to examine “the Extent of Radicalization in the American Muslim Community and that Community’s Response.” King is concerned that Muslims in America are becoming more radicalized and that the Muslim community is doing little to counter that trend.

Are King’s concerns legitimate?

In one respect, yes.  We have seen an increase in the attempted domestic terror plots

Figure 2

committed by American Muslims in the years since 9/11 (Triangle Center on Terror and Homeland Security, Figure 2).  This attempted terrorism is considered a strong indicator of radicalization.  (It is important to note that the number of terror attempts dropped by half, despite the fact that the attempts received more media attention.)

An increase in radicalization, however, cannot only be ascribed to members of the Muslim community.   In 2010, the number of hate groups operating in the US reached its peak, topping 1,000.  Some of these groups include neo-Nazis, white nationalists, neo-Confederates, racist skinheads, Klansmen, and black separatists (Southern Poverty Law Center).  “Other hate groups on the list target gays or immigrants, and some specialize in producing racist music or propaganda denying the Holocaust,” the center’s report also says.

Individuals, often associated with these organizations, have attempted to carry out terror plots in the US as well.  “In an 11-day period this January, a neo-Nazi was arrested as he headed for the Arizona border with a dozen homemade grenades; a terrorist bomb attack on a Martin Luther King Jr. Day parade in Spokane, Wash., was averted when police dismantled a sophisticated bomb; and a man who officials said had a long history of antigovernment activities was arrested in a car filled with explosives outside a packed mosque in Dearborn, Mich.” (Southern Poverty Law Center .) (I am particularly troubled that these instances of terrorism, especially the last one in which Muslims were targeted, were hardly reported in the mainstream media, unlike terror plots undertaken by Muslims.)

Clearly, radicalization is not just a phenomenon we see in a small number of Muslim Americans; it is a phenomenon that has been seen among whites, blacks, Christians and others across America.  As Mississippi representative Bennie Thompson, a ranking member of the House Homeland Security Committee said during the hearing, radicalization is a nation-wide problem affecting Americans in all ethnic and religious groups.  Because of this, he called on King to hold a hearing to address the radicalization of anti-government and white supremacist groups as well.

He, many others, and myself believe that pigeonholing one group, as King has done with this hearing, is dangerous.  It not only ignores important security threats (the 1,000 hate groups I just mentioned), but it has the potential to create further radicalization among American Muslim individuals, who may feel that their government does not trust them, simply because of their religious background.

Minnesota Representative Keith Ellison, the first Muslim elected to Congress, who agreed to testify but didn’t agree with the specificity of the hearings, said, “If you start to make a community feel besieged, they’re just going to feel more reticent. It’s just a natural human reaction to feel like a target.” (New York Magazine)

He also recognizes the need to investigate all forms of radicalism in order to better secure our country.  “If you took every Muslim in America and put them in a jail, it wouldn’t have stopped Gabby Giffords from being shot. It wouldn’t have saved the people in Oklahoma City. It wouldn’t have saved the guard at the Holocaust Museum. It wouldn’t have saved the students at Columbine or Virginia Tech. To me, it’s like he’s saying we’re going to deal with drugs, but we’re only going to deal with black drug dealers.”  (New York Magazine)

Even the title of the hearing itself is problematic, because it places the emphasis on the Muslim “community,” not on individuals.  This title only increases the perception that the US government is at war with Islam, and as Imam Feisal Abdul Rauf of the Cordoba Initiative has expressed, this perception has the potential to increase radicalization of Muslims abroad.

Now I’ll turn to King’s second concern: that the American Muslim community has not done enough to prevent radicalization and stop violence.

This claim, however, has been refuted by the Justice community and specifically by Attorney General Eric Holder, who asserts that the Muslim community has been highly helpful in providing tips that have resulted in the disruption of terror plots. (CBS)

According to the same Triangle Center study, fellow Muslims were most often those who provided initial information to law enforcement about Muslim American terror plots since 9/11 (48 out of 120 cases).

Though King disagrees, he has not produced any sources to support his claim that Muslims are uncooperative. (New York Magazine)

I also take issue with part of King’s list of witnesses.  He was right to ask Muslim representative Ellison to testify, yet he failed to invite the other Muslim representative, Andre Carson (who represents my district in Indiana.) No federal law enforcement officials were present; only a sheriff from Los Angeles was.  Thankfully, John Dingell, who represents Dearborn, Michigan, a city with a large Muslim population, was invited to speak, and reminded us that we can’t let a neo-McCarthyism—focused this time on Islam instead of Communism—take root.

I was also disappointed to see that mainstream Muslim leaders like Imam Feisal Abdul Rauf (of the Cordoba Initiative and the American Society for Muslim Advancement) and Imam Mohamed Magid (of the Islamic Society of North America—located outside Indianapolis!) were not asked to testify.  Only Zudhi Jasser (of the American Islamic Forum for Democracy), who was unknown to me until the hearings, was present.

Aside from Ellison and Dingell, it seems that the witnesses were brought in to back King’s own misguided positions, not to provide the full range of discourse needed.

It is hard to take King or this hearing seriously, not only because his list of witnesses, but also because of previous statements he’s made about American Muslims and his support of the Irish terrorist group, the IRA.

In 2004, King supported the claim that 80% of mosques in American were run by radical imams, and in 2007, he said that America had “too many mosques.”  The first statement is clearly unsubstantiated, false, and ultimately offensive to American Muslims and their supporters like me.  And his second statement questions Muslims’ First Amendment rights to express their religion by building places of worship.

King is strongly opposed to Islamic terrorism, yet he staunchly supported the IRA, a violent terrorist group that operated in Northern Ireland.  Tom Parker, a counterterrorism expert at Amnesty International, expresses my thoughts well: “My problem is with the hypocrisy.  If you say that terrorist violence is acceptable in one setting because you happen to agree with the cause, then you lose the authority to condemn it in another setting.” (Washington Post)

Why King decided to hold this hearing in unclear to me.  The reasons he cites are, as I hope I’ve shown, incomplete and misinformed.  While I do not have any definite answers, I fear politics may play a part.  As the Park 51 Center made headlines last summer in anticipation of the midterm elections, this hearing is making the news as talk of the 2012 elections begins.  The American Muslim community became a political pawn last summer, and I fear that the same will happen in the future, because of this hearing.  Sadly, the climate of fear of Muslims, created and sustained by politicians and the news media, can be easily exploited for political gain.

Through today’s hearing, King hoped to increase America’s security and protect its values.  However, I’m afraid the hearing chipped away at both, just as anti-Japanese policy did 70 years ago.  We cannot let the Muslim Americans of the 2000s become the Japanese Americans of the 1940s.

I don’t think it is overly dramatic to say that this hearing could be the first step down a dangerous and bigoted path that our country has unfortunately walked before.

Many people might counter me, saying, “That could never happen again. Today is different.  We are more tolerant now.”

Sadly, I’m not so sure.

For more reflections on the hearing, check out:

Religious leaders comment on the significance of the hearing on the Washington Post’s  “On Faith” blog.