NDAA: A Primer

Aaron Tao
Oct 1, 2012 at 3:10 PM

"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." ~ Sir William Blackstone, Commentaries on the Laws of England

Last New Year's Eve, the 2012 National Defense Authorization Act (NDAA) was signed into law by President Obama. The most controversial aspect of NDAA was a provision that allowed for the military detention of American citizens without due process. Though apologists for the administration tried to spin or downplay it, constitutional lawyer Glenn Greenwald made the facts very clear:

  1. It does codify indefinite detention. The military can be used to detain anyone.
  2. It does expand the scope of the War on Terror as defined by the 2001 Authorization for Use of Military Force, originally intended to go after and punish the perpetrators responsible for 9/11.
  3. U.S. citizens are not exempt. In fact, House and Senate amendments pushed by a handful of Democrats and libertarian Republicans that would have explicitly exempted U.S. citizens from indefinite military detention were defeated. Furthermore, an open letter signed by forty retired generals and admirals in support of these measures were ignored.

Faced with these facts, it's put up or "shut up" time for the American people. NDAA is arguably the gravest constitutional crisis we're facing today since it guts centuries of Anglo-American law. As Justices Scalia and Stevens pointed out in their eloquent dissent in Hamdi v. Rumsfeld: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."

For those unfamiliar with the Hamdi case, the Supreme Court ruled that Yaser Esam Hamdi, an American citizen captured during the 2001 invasion of Afghanistan, could be held in military detention but not without habeas review. That case, however, involved an actual battlefield in an actual war. What NDAA permits goes even further. Section 1021 of this law states the military can detain anyone deemed to be "a part of" or deemed to have "substantially supported" Al Qaeda, the Taliban, or "associated forces."

Despite our cable networks remaining mostly silent on an assault that strikes at the very heart of our cherished liberties, online outrage over NDAA has brought together organizations and activists that disagree on almost every other issue. Politics certainly creates strange bedfellows as opposition to "indefinite imprisonment at the will of the Executive" brought together a trans-partisan coalition that include the Tea Party, Occupy Wall Street, Amnesty International, Downsize DC, Human Rights Watch, the Tenth Amendment Center, the Rutherford Institute, and the American Civil Liberties Union. A lawsuit against NDAA was filed by Pulitzer Prize-winning journalist Christopher Hedges joined by prominent MIT professor and dissident Noam Chomsky, Pentagon Papers leaker Daniel Ellsberg, activist Jennifer "Tangerine" Bolen, and other concerned individuals.

Last May, federal judge Katherine Forrest issued a preliminary injunction that barred the provision that allowed for indefinite detention. On September 12th, Judge Forrest ruled the offending provision unconstitutional and issued a permanent injunction against its enforcement. Not surprisingly, the Obama administration filed an appeal in less than 24 hours of Judge Forrest's ruling! On September 18th, Judge Raymond Lohier of the Second Circuit Court of Appeals wrote a one-page order that put a temporary hold on the decision to block NDAA without offering any further explanation. As of this writing, the court of appeals has yet to set a date for a full hearing.

Having closely followed the NDAA controversy since last December, the Obama administration's actions are nothing less than astonishing. First, Obama promised to veto the law but flip-flopped at the last minute. He also issued a signing statement explaining he will not use that power to detain American citizens despite the fact he campaigned against signing statements not to mention they carry no legal weight and will not bind future presidents.


In the aftermath of Judge Forrest's ruling, the intensity and fury of the administration's response have raised numerous suspicions. Plaintiff Chris Hedges noted, "The request by the government to keep the law on the books during the appeal process raises a disturbing question. If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future." Even more shockingly, the administration lawyers refused to answer if NDAA was already being used (illegally) to hold American citizens without due process during oral arguments. Why does Obama want to reclaim a power that he supposedly refuses to use? To quote from investigative journalist Ben Swann, "Actions speak louder than words. For anyone following this case, it should be undoubtedly clear where the President actually stands on this issue."

Regardless how the appeals court rules, it is very likely this legal battle will end up in the Supreme Court. We're heading for constitutional showdown between Judiciary and Executive not seen since the Pentagon Papers. May the odds be ever in liberty's favor.

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