FacebookTwitterRedditEmail

Why the NDAA is Unconstitutional

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.


More articles by:

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.

bernie-the-sandernistas-cover-344x550
August 19, 2019
John Davis
The Isle of White: a Tale of the Have-Lots Versus the Have-Nots
John O'Kane
Supreme Nihilism: the El Paso Shooter’s Manifesto
Robert Fisk
If Chinese Tanks Take Hong Kong, Who’ll be Surprised?
Ipek S. Burnett
White Terror: Toni Morrison on the Construct of Racism
Arshad Khan
India’s Mangled Economy
Howard Lisnoff
The Proud Boys Take Over the Streets of Portland, Oregon
Steven Krichbaum
Put an End to the Endless War Inflicted Upon Our National Forests
Cal Winslow
A Brief History of Harlan County, USA
Jim Goodman
Ag Secretary Sonny Perdue is Just Part of a Loathsome Administration
Brian Horejsi
Bears’ Lives Undervalued
Thomas Knapp
Lung Disease Outbreak: First Casualties of the War on Vaping?
Susie Day
Dear Guys Who Got Arrested for Throwing Water on NYPD Cops
Weekend Edition
August 16, 2019
Friday - Sunday
Paul Street
Uncle Sam was Born Lethal
Jennifer Matsui
La Danse Mossad: Robert Maxwell and Jeffrey Epstein
Rob Urie
Neoliberalism and Environmental Calamity
Stuart A. Newman
The Biotech-Industrial Complex Gets Ready to Define What is Human
Nick Alexandrov
Prevention Through Deterrence: The Strategy Shared by the El Paso Shooter and the U.S. Border Patrol
Jeffrey St. Clair
The First Dambuster: a Coyote Tale
Eric Draitser
“Bernie is Trump” (and other Corporate Media Bullsh*t)
Nick Pemberton
Is White Supremacism a Mental Illness?
Jim Kavanagh
Dead Man’s Hand: The Impeachment Gambit
Andrew Levine
Have They No Decency?
David Yearsley
Kind of Blue at 60
Ramzy Baroud
Manifestos of Hate: What White Terrorists Have in Common
Evaggelos Vallianatos
The War on Nature
Martha Rosenberg
Catch and Hang Live Chickens for Slaughter: $11 an Hour Possible!
Yoav Litvin
Israel Fears a Visit by Ilhan Omar and Rashida Tlaib
Neve Gordon
It’s No Wonder the Military likes Violent Video Games, They Can Help Train Civilians to Become Warriors
Susan Miller
That Debacle at the Border is Genocide
Ralph Nader
With the Boeing 737 MAX Grounded, Top Boeing Bosses Must Testify Before Congress Now
Victor Grossman
Warnings, Ancient and Modern
Meena Miriam Yust - Arshad Khan
The Microplastic Threat
Kavitha Muralidharan
‘Today We Seek Those Fish in Discovery Channel’
Louis Proyect
The Vanity Cinema of Quentin Tarantino
Bob Scofield
Tit For Tat: Baltimore Takes Another Hit, This Time From Uruguay
Nozomi Hayase
The Prosecution of Julian Assange Affects Us All
Ron Jacobs
People’s Music for the Soul
John Feffer
Is America Crazy?
Jonathan Power
Russia and China are Growing Closer Again
John W. Whitehead
Who Inflicts the Most Gun Violence in America? The U.S. Government and Its Police Forces
Justin Vest
ICE: You’re Not Welcome in the South
Jill Richardson
Race is a Social Construct, But It Still Matters
Dean Baker
The NYT Gets the Story on Automation and Inequality Completely Wrong
Nino Pagliccia
Venezuela Retains Political Control After New US Coercive Measures
Gary Leupp
MSNBC and the Next Election: Racism is the Issue (and Don’t Talk about Socialism)
FacebookTwitterRedditEmail