Every year, Congress passes the National Defense Authorization Act (NDAA), which makes appropriations for the defense budget. This is mandated under Article I, Section 8 of the U.S. Constitution, which delegates powers to Congress, here stating: “The Congress shall have Power … To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” However, like much of the legislation that comes out of Washington, each years bill is stuffed with other provisions.
The NDAA began receiving wide attention in late 2011 when, on December 31, President Obama signed the NDAA for Fiscal Year 2012. Under Title X, Subtitle D of this law is the controversial section 1021, which essentially legalizes martial law in the United States. Reading “Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization of Use of Military Force,” this provision allows the United States military to act as a police force, and arrest or use force against any person (including American citizens) suspected of terrorism. Further, they may hold these persons without trial indefinitely.
The NDAA for 2013, which President Obama signed this month, again includes these provisions despite pressure from Senator Rand Paul (R-Ky.), citing Section 1021 as a gross, unconstitutional overreach of federal power. Proponents of this legislation characterize such interpretations of the law as hyperbolic and “paranoid,” stating that Section 1021 will only be used under the pretext of “Counter-terrorism.” Save the fact that this provision all but wipes out nearly our entire Bill of Rights in one fell swoop and that the persons detaining you serve as judge, jury, and executioner in determining who qualifies as a “terrorist.”
Senator Diane Feinstein (D-Calif.) and Senator Mike Lee (R-Utah) sponsored an amendment to the 2013 NDAA which is intended to limit Section 1021's powers to indefinitely detain American citizens. However, many civil liberties groups, including the ACLU, have publicly stated that the amendment is counterproductive. Senior Legislative Counsel at the ACLU, Chris Anders, states that the Feinstein-Lee Amendment can be misconstrued to imply that the Constitution grants authority for indefinite detention.
“Moreover, we are very concerned that the Feinstein amendment implicitly authorizes domestic military detention. By seeking to protect only United States citizens and legal permanent residents, the amendment could be read to imply that indefinite military detention of any other persons apprehended within the United States was authorized in 2001 and was lawful,” the ACLU wrote, referring to the Authorization for Use of Military Force, passed the week after the 9/11 attacks in pursuit of a "war on terror." “In addition, the clause ‘unless an Act of Congress expressly authorizes such detention’ could be read to imply that there are no constitutional obstacles to Congress enacting a statute that would authorize the domestic military detention of any person in the United States.”
Regardless, a Congressional conference committee redacted the amendment from the final version of the NDAA for no visible reason.
Of course, our Commander-in-Chief has promised that he will never abuse this power. We can undoubtedly add that to the long list of broken promises the president has made by pointing to the extrajudicial killings of Anwar Al-Aulaqi and Samir Khan, two American citizens considered by the United States government to be terrorist sympathizers. There is also the case of alleged-Anarchist Leah Plante, who's home was raided on a warrant seeking computers, phones, black clothing, and anarchist literature, and was imprisoned despite the fact that she was never charged with a crime.
Speaking of broken promises, the NDAA for 2013 also includes a provision which prevents the closure of Guantanamo Bay. While running for the presidency, then-Senator Obama made this one of the major points of his campaign. Despite repeated pleas that the secret military prison would be closed on his watch, and despite having majorities in the Senate and the House for his first two years, this was never actively pursued. Speaking to these ends, the president noted in his signing statement of NDAA 2013: “Even though I support the vast majority of the provisions contained in this Act, which is comprised of hundreds of sections spanning more than 680 pages of text, I do not agree with them all. Our Constitution does not afford the president the opportunity to approve or reject statutory sections one by one.” A very convenient time to choose to abide by the Constitution, Mr. President.
The White House originally reported that the President would veto both the 2012 and the 2013 versions of the NDAA, based on the indefinite detention clause and the clauses which prevent the closing of Gitmo, respectively. Regardless, President Obama signed both “with reservations.” Interestingly enough, when a group of plaintiffs filed suit in federal court challenging the constitutionality of Section 1021, and a U.S. District Court granted an injunction against the Obama administration from using that provision, the White House successfully fought to appeal the decision.
Why, under any circumstances, should the federal government have the power to imprison or kill any person they deem a threat without ever giving that person a right to due process? Senator Lindsey Graham's answer to this question is for the American people to “Shut up!”
This blatant, unabashed abandonment of the Constitution and our founding principles is nauseating. If it is paranoid to demand that elected officials abide by the document which was drafted to limit their power, then consider me amongst the most paranoid of all.