FacebookTwitterGoogle+RedditEmail

Why the NDAA is Unconstitutional

by BRIAN J. TRAUTMAN

Each year, Congress authorizes the budget of the Department of Defense through a National Defense Authorization Act (NDAA). The NDAA of 2012, however, is unlike any previous ones. This year’s legislation contains highly controversial provisions that empower the Armed Forces to engage in civilian law enforcement and to selectively suspend due process and habeas corpus, as well as other rights guaranteed by the 5th and 6th Amendments to the U.S. Constitution, for terror suspects apprehended on U.S. soil. The final version of the bill passed the House on December 14, the Senate the following day (ironically, the 220th birthday of the Bill of Rights). It was signed into law by President Obama on New Year’s Eve. With his signature, for the first time since the Internal Security Act of 1950 and the dark days of the McCarthy era that followed, our government has codified the power of indefinite detention into law.

This pernicious law poses one of the greatest threats to civil liberties in our nation’s history. Under Section 1021 of the NDAA, foreign nationals who are alleged to have committed or merely “suspected” of sympathizing with or providing any level of support to groups the U.S. designates as terrorist organization or an affiliate or associated force may be imprisoned without charge or trial “until the end of hostilities.” The law affirms the executive branch’s authority granted under the 2001 Authorization for Use of Military Force (AUMF) and broadens the definition and scope of “covered persons.” But because the “war on terror” is a war on a tactic, not on a state, it has no parameters or timetable. Consequently, this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability – potentially even demonstrators and protesters exercising their First Amendment rights.

One popular myth surrounding this law (which has been marketed well by the White House and the mainstream media) is that it does not pertain to U.S. persons (citizens and resident aliens). While the law does not explicitly target U.S. persons, it neither excludes nor protects them. Section 1022 of the law covers U.S. persons. The section allows for open-ended executive judgment with regard to the handling of U.S. persons. In other words, the detention of U.S persons is optional, rather than a requirement as it is for non-U.S. persons. Jonathan Turley, legal scholar and professor at George Washington University, explains that “the provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.”

Regardless of whether or not this law is interpreted as applying to U.S. persons, by specifically targeting foreign nationals, the NDAA violates the “equal protection” clause of the 14th Amendment, which guarantees that all people be treated the same under the law. Therefore, any way you slice it, this law is unconstitutional.

Accompanying the President’s signature was a signing statement which was intended to clarify some of his perspectives on the NDAA’s most controversial language. The statement read in part, “my administration will not authorize the indefinite military detention without trial of American Citizens.” However, what is important to keep in mind here is that the statement refers only to what this administration pledges, not to the intentions or requirements of future administrations. As television host and political commentator Rachel Maddow put it in recent segment, “you now live in a country where, technically at least, the military has a legal role to play in civilian law enforcement.” Dr. Maddow pointed that while this may or may not be invoked during the present administration, “thanks to this bill…if this president changes his mind or some other president in the future does want to arrest Americans and lock them up in military custody forever without trial, our government statutorily now claims that as its right.”

Although more than two-thirds of the House voted in favor of the NDAA, not every member was on board with it. Rep. Dennis Kucinich (D-OH) remarked that “what this bill does is it takes a wrecking ball to the United States Constitution.” Rep. Paul Tonko (D-NY) described this bill as a threat to “the inalienable due process rights afforded to every American citizen under the Constitution.”

The NDAA’s draconian detention provisions have received most of the attention, effectively overshadowing the fact that this legislation continues a trend of spending vast sums of taxpayer money on so-called “defense” objectives. According to Senator Bernie Sanders (I-VT), one of only 13 members of the Senate to vote against the NDAA, “the bill continues to authorize heavy spending on defense despite the end of the 9-year-old war in Iraq. Ironically, the Senate vote came on the same day when Defense Secretary Panetta was in Baghdad officially declaring that our military mission there has ended and that virtually all of the combat troops will leave Iraq by the end of the year.  At a time when we have tripled defense spending since 1997 and spend more today on defense than the rest of the world combined.”

The executive branch has acquired greater authoritarian and unaccountable power under this law which disaffirms justice as a fundamental human right. It brings the illegal practice of extraordinary rendition home. Tom Parker of Amnesty International USA argues that the NDAA “provides a framework for ‘normalizing’ indefinite detention and making Guantanamo a permanent feature of American life.” What democracy and civil liberties we did enjoy in this country before the NDAA of 2012 became law have been severely weakened, and our nation’s moral and legal credibility in the world, which has been gradually declining since the so-called “war on terror” was declared by President Bush, has been diminished further.

The NDAA of 2012 increases the United States’ worldwide detention authority. In doing so it further entrenches a culture of war in American society. According to the American Civil Liberties Union (ACLU), “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield… the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.”

As difficult as it might be to have any faith left in the Congress, there is hope on the horizon for overturning at least the portion of the law that threatens U.S. persons. The Due Process Guarantee Act of 2011, H.R. 3702, authored by Rep. John Garamendi (D-CA) and Martin Heinrich (D- NM) and currently co-sponsored by 32 House members, including the ranking members of the Armed Services, Foreign Affairs, and Judiciary committees, clarifies existing U.S. law and states unequivocally that the government cannot indefinitely detain American citizens or lawful U.S. residents. It ensures that U.S. citizens and permanent residents on American soil are protected. The bill amends the Non-Detention Act of 1971, clarifying that a congressional authorization for the use of military force – such as that in the NDAA which included the detainee provisions – does not authorize the indefinite detention without charge or trial of U.S. citizens apprehended on U.S. soil. H.R. 3702 is companion legislation to Senator Dianne Feinstein’s Due Process Guarantee Act of 2011, S. 2003.

Since 2001, the Patriot Act, the AUMF, and now the National Defense Authorization Act of 2012 have eroded many of our most valued constitutional rights. Our nation is moving away from government “of the people, by the people, for the people” and toward a totalitarian state. The late historian, Howard Zinn observed, “Terrorism has replaced Communism as the rationale for the militarization of the country [America], for military adventures abroad, and for the suppression of civil liberties at home. It serves the same purpose, serving to create hysteria.”

It is up to the American people to stop this fear-mongering and this unfettered growth of the military industrial complex. How? Americans can begin by actively dissenting against laws that violate their Constitution and their conscience. Dr. Zinn believed very strongly that “dissent is the highest form of patriotism.

If the Constitution is to be defended against those who aspire to destroy it, all Americans have a duty to themselves and their country to stand up and demand progressive change toward a culture of peace and justice. One of the most effective ways to do this is by engaging in methods of nonviolent direct action, as demonstrated by the Occupy Wall Street movement. As more Americans embrace these methods and the Occupy movement grows stronger, Washington will be forced to end its campaign of militarizing law enforcement and American society or risk being voted out of office. Only then can the freedoms and civil liberties the people are promised in the Constitution be restored.

Brian J. Trautman is a military veteran and an instructor of peace and world order studies at Berkshire Community College located in Pittsfield, MA. He is an active member of Veterans for Peace and Berkshire Citizens for Peace and Justice.


Brian J. Trautman is an instructor of peace studies at Berkshire Community College in Pittsfield, MA, a peace activist with Berkshire Citizens for Peace and Justice, and an Army veteran. He is also a member of Veterans for Peace. On Twitter @BriTraut.

More articles by:

CounterPunch Magazine

minimag-edit

August 24, 2016
John Pilger
Provoking Nuclear War by Media
Jonathan Cook
The Birth of Agro-Resistance in Palestine
Eric Draitser
Ajamu Baraka, “Uncle Tom,” and the Pathology of White Liberal Racism
Jack Rasmus
Greek Debt and the New Financial Imperialism
Robert Fisk
The Sultan’s Hit List Grows, as Turkey Prepares to Enter Syria
Abubakar N. Kasim
What Did the Olympics Really Do for Humanity?
Renee Parsons
Obamacare Supporters Oppose ColoradoCare
Alycee Lane
The Trump Campaign: a White Revolt Against ‘Neoliberal Multiculturalism’
Edward Hunt
Maintaining U.S. Dominance in the Pacific
George Wuerthner
The Big Fish Kill on the Yellowstone
Jesse Jackson
Democrats Shouldn’t Get a Blank Check From Black Voters
Kent Paterson
Saving Southern New Mexico from the Next Big Flood
Arnold August
RIP Jean-Guy Allard: A Model for Progressive Journalists Working in the Capitalist System
August 23, 2016
Diana Johnstone
Hillary and the Glass Ceilings Illusion
Bill Quigley
Race and Class Gap Widening: Katrina Pain Index 2016 by the Numbers
Ted Rall
Trump vs. Clinton: It’s All About the Debates
Eoin Higgins
Will Progressive Democrats Ever Support a Third Party Candidate?
Kenneth J. Saltman
Wall Street’s Latest Public Sector Rip-Off: Five Myths About Pay for Success
Binoy Kampmark
Labouring Hours: Sweden’s Six-Hour Working Day
John Feffer
The Globalization of Trump
Gwendolyn Mink – Felicia Kornbluh
Time to End “Welfare as We Know It”
Medea Benjamin
Congress Must Take Action to Block Weapon Sales to Saudi Arabia
Halyna Mokrushyna
Political Writer, Daughter of Ukrainian Dissident, Detained and Charged in Ukraine
Manuel E. Yepe
Tourism and Religion Go Hand-in-Hand in the Caribbean
ED ADELMAN
Belted by Trump
Thomas Knapp
War: The Islamic State and Western Politicians Against the Rest of Us
Nauman Sadiq
Shifting Alliances: Turkey, Russia and the Kurds
Rivera Sun
Active Peace: Restoring Relationships While Making Change
August 22, 2016
Eric Draitser
Hillary Clinton: The Anti-Woman ‘Feminist’
Robert Hunziker
Arctic Death Rattle
Norman Solomon
Clinton’s Transition Team: a Corporate Presidency Foretold
Ralph Nader
Hillary’s Hubris: Only Tell the Rich for $5000 a Minute!
Russell Mokhiber
Save the Patients, Cut Off the Dick!
Steven M. Druker
The Deceptions of the GE Food Venture
Elliot Sperber
Clean, Green, Class War: Bill McKibben’s Shortsighted ‘War on Climate Change’
Binoy Kampmark
Claims of Exoneration: The Case of Slobodan Milošević
Walter Brasch
The Contradictions of Donald Trump
Michael Donnelly
Body Shaming Trump: Statue of Limitations
Weekend Edition
August 19, 2016
Friday - Sunday
Carl Boggs
Hillary and the War Party
Jeffrey St. Clair
Roaming Charges: Prime Time Green
Andrew Levine
Hillary Goes With the Flow
Dave Lindorff
New York Times Shames Itself by Attacking Wikileaks’ Assange
Gary Leupp
Could a Russian-Led Coalition Defeat Hillary’s War Plans?
Conn Hallinan
Dangerous Seas: China and the USA
Joshua Frank
Richard Holbrooke and the Obama Doctrine
FacebookTwitterGoogle+RedditEmail