NDAA: What We’re Giving Up For This Defense Bill

President Obama signed the National Defense Authorization Act (NDAA) on December 31, 2012, ushering in the new year with a controversial law which may impede civil liberties in its current form. As this New York Times article points out, President Obama signed this rather reluctantly, being aware that the non-budgetary components were not entirely constitutional and bordered on infringing on the president’s authority. Obama's step is a pragmatic one. While it binds his hands when it comes to closing down Guantanamo Bay (GITMO), doing so may have been a necessary evil to get work done. But considering the provisions of the act in its current form, we may be giving up more than we had bargained for.

While the NDAA is a routine act lying out the budgets, and is not meant be a controversial act, the maxim “Budget is a policy and a political tool,” rings true, this time, more than ever. There are a few troubling provisions in this act as it stands. They include warrantless wire-taps, and absolute intrusion of privacy. This also means that some of these provisions have been included, from a particular ideological stand-point, which is damaging to civil liberties. As Senator Ron Wyden explains, this act is just putting off the real issues, both in terms of his objection to expenditures and GITMO. He called it the “kicked can,” alluding to putting off real issues which need to be dealt with, including GITMO's closure.

The second troubling part of this act is the uplifting of ban on domestic propaganda. Congressmen Mac Thornberry (R-Texas) and Adam Smith (D-Wash.) introduced “The Smith-Mundt Modernization Act of 2012” (H.R. 5736) last week during discussions for the NDAA 2013. This updates the Smith-Mundt Act of 1948 and Foreign Relations Authorization Act of 1987 allowing for domestic propaganda by the U.S. government. While the intent of the act seems to be to counter the propaganda of Al-Qaeda and other groups intent on false anti-American propaganda, the logic of “countering fire with fire” seems a bit far-fetched. The American public is getting wiser, and one hopes that U.S. taxpayer dollars are not spent on propaganda campaigns.

In its response to the passage of the law, the American Civil Liberties Union said, "The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA. In addition, 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."

The ACLU also points out that there is a provision which can make discrimination against gay, lesbian and bisexual service members easier, though it is not explicit. The post goes on to point out, "During its consideration of the bill, House Armed Services Committee adopted an amendment offered by Rep. Todd Akin (R-Mo.) that required beliefs of members of the armed forces 'concerning the appropriate and inappropriate expression of human sexuality' to be accommodated. The amendment was a naked attempt to undermine “Don’t Ask, Don’t Tell” repeal and open service for lesbian, gay, and bisexual service members."

It is true that national defense cannot be compromised, and the Department of Defense and other agencies must have the power to do what is necessary to protect and safe-guard American citizens. But this right does not mean unfettered access and unlimited power, which is what the law gives these agencies.

One can hope that this law creates the amount of debate that is necessary, and that the president uses his power to negotiate and remove provisions which are troubling. While far-fetched and unlikely, these bargains are our only hope for living a free life. Lest this continue, very soon, we may be find ourselves in an Orwellian state.

On second thought, perhaps we already are?