The National Defense Authorization Act (NDAA) is either the big deal that no one’s talking about or a standard budgetary bill that shouldn’t be getting much attention at all, depending on whom you believe. For those in the first category, certain sections of the bill (to be discussed here) are radically anti-civil liberties and shouldn’t be part of a culture that values personal freedom. To those in the second category, all that this year’s NDAA (yes, it’s annual) does is put into writing what the president has had the authority to do since the 9/11 attacks.
In my opinion, both of these views are causes for concern: Yes, the bill expands the government’s ability to detain suspected terrorists (citizens or not), and yes, we’ve already been doing that for 10 years. But after 10 years of fighting terror, killing Osama bin Laden, and significantly weakening al Qaeda, isn’t it time to be winding down intrusions upon the personal freedoms of the American people? NDAA 2012 codifies the extraordinary powers of the post-9/11 weeks and months, powers that have been used to justify a whole host of actions in the past, and will certainly justify many more in the future.
There’s something about a never-ending War on Terror that goes against the principles upon which America was built. Already, our counterterrorism efforts have been used in one way or another to justify unreasonable searches and seizures, suspensions of habeas corpus, and secret prisons. All of these would be violations of our constitutional rights during peacetime, but fears of violent extremism have made them the new bedrocks of America’s security apparatus. If the goal of terrorism is the destruction of America’s core principles, we cannot fight back with laws that do just that.
The Law Itself
First, it’s useful to define all of the terms we’re working with: the National Defense Authorization Act (NDAA) is passed every year. It is the budget for the Department of Defense, which includes military expenditures, foreign wars, military bases, and soldiers’ pay. This year, the NDAA faced sharp opposition from civil liberties groups nationwide mainly because of two specific provisions in the bill, sections 1031 and 1032. What’s all the fuss about*?
“Congress affirms that the authority of the President to use … the Armed Forces of the United States to detain covered persons. … A covered person under this section is any 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. … The disposition of a person under the law of war … may include … [d]etention under the law of war without trial until the end of the hostilities.”
The real concern within civil liberties communities arises with this section of the bill, for a few reasons. For one, the definition of a possible detainee includes “any person who has committed a belligerent act.” This leaves the door open. Who is considered actively engaging in belligerency against the United States? This is one of the reasons I find the bill so concerning: is Occupy Wall Street a belligerent threat? What about the Tea Party or Code Pink? Would Malcolm X have been a belligerent or an activist? What about Bradley Manning or Julian Assange?
The vagueness in the bill is meant to leave the matter up to the courts, many of which have taken unclear stances themselves on civil liberties. George Bush’s legal team used this lack of clarity to its advantage by spinning complex legal webs to justify things like wiretapping, enhanced interrogation, and the Patriot Act. It looks as if this bill is following the same practices that other counterterrorism laws have followed for the past decade: take the widely held interpretation of a previously vague law, then use other vague laws to create a new, written version of what is “necessary” to combat terrorist threats. In essence, build upon common practices to create more and more aggressive laws.
This might seem like a slippery slope argument, but let’s remember what originally gave the president so much power to combat terrorism: a bill passed a week after 9/11 called the “Authorization for Use of Military Force Against Terrorists (AUMF).” It states, “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
President Bush used this bill to justify almost every single counterterrorism action taken during his administration (legal or not). President Obama’s legal team used this to justify almost every counterterrorism action during the current administration, and they used it again tojustify NDAA. So while many say that section 1031 simply put into writing the common practices of the post-9/11 era, it seems much too likely that this law will become the legal basis for others in the future that are more radical. These laws will simply build upon AUMF, the Patriot Act, and NDAA 2012 to create more extreme interpretations of what the government is allowed to do.
“The Armed Forces of … the United States shall hold a person … in military custody pending disposition under the law of war. … The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”
This states that the military has the power to hold any non-citizen indefinitely, as it has done at Guantanamo Bay. However, it also leaves room for the possibility of the indefinite arrest of American citizens, just not by the military. While I could make a larger point about the inevitability of such laws being used more liberally as time moves on, there is a larger theme to be made known here: the legal model of the United States was never meant for indefinite detention. The laws that allow this kind of behavior were meant for wartime (You know, for the wars that actually end). The fact is, the War on Terror is just like the War on Drugs – never ending, with a hunger for more and more aggressive techniques in an attempt to win an unwinnable battle.
There will always be terrorists, and the United States will always be under some kind of terrorist threat, as vague and minimal as it could someday become. And (according to the language in this bill) as long as there are terrorists, the President of the United States will have the ability to arrest any “belligerent” person. So whereas in a normal war we could use indefinite detention to detain enemy soldiers during the heat of battle, we’ve used language meant for finite conflicts, and we’ve expanded it to adapt to a never ending one. The implications of this are vast.
It’s easy to lose the significance of civil liberties in a post-9/11 era. With security at such a high premium, we can forget that by protecting our freedoms, we may be sacrificing the very things that make us free. The National Defense Authorization act puts in writing the extraordinary measures that we allowed our government to yield in the weeks and months post-9/11. They were not meant to last 10 years, and they were not meant to be institutionalized. If the War on Terror is a never-ending one, our personal freedoms cannot be indefinitely detained.
*I’ve created a full version of the text of sections 1031 and 1032 of the National Defense Authorization Act of 2012, with the parts that I used in this article highlighted. It can be found here.