The state of NDAA: Why it still matters, indefinitely

By Aseal Tineh, Government Affairs Intern

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On December 31, 2011, President Barack Obama signed the annual National Defense Authorization Act (NDAA) for Fiscal Year 2012 which includes a counterterrorism provision. For the first time in American history, the counterterrorism provision allows the indefinite military detention, without charge or trial, of any person suspected of terrorist activity, including United States citizens.

Although proponents of the 2012 NDAA maintain this provision to be indispensable in the War on Terror, it comes at the expense of the rights, liberties, and values that this country was founded upon and has been proud to uphold for over two centuries.

The counterterrorism provision has proven to be unconstitutional and un-American, violating international war law and the U.S. Constitution. Although International Humanitarian Law (IHL) dictates that all captured people must be in armed conflict, the provision grants the U.S. military the power to capture any suspected person on any soil, regardless of whether or not they are in armed battle. Similarly, the provision is a direct violation of the Bill of Rights’ Sixth Amendment, which guarantees every American citizen the right to a trial. Under this provision, there no longer exists the presumption of innocence—the belief that one is “innocent until proved guilty.”

The bill singing is a large step backward for a nation that prides itself on being the golden example of democracy. Supporters of this bill have allowed their fear of terrorism to supersede over two centuries’ worth of American traditions—the same traditions that set the United States apart from both its friends and enemies.

The provision grants the President of the U.S. the authority to mandate the capture of civilians, sentencing them to indefinite detention without charge or trial based on suspicion alone. By removing the courts from the detention process, the counterterrorism provision threatens the separation of powers and the system of checks-and-balances.

In a statement made by the president after signing the bill, President Obama assures the nation that his administration “will interpret [the provision] in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”

Although President Obama may have been sincere in the promise he made to the country, there is no guarantee that all future presidents will follow his example. To grant such power and authority to a single individual will lead to an imbalance of power and should not be tolerated by American citizens.

The language used to make up the counterterrorism provision is decidedly vague and leaves a rather large amount of room for interpretation, stating that it applies to anyone who “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,” without defining what it is that means.

On May 16, 2012, federal district Judge Katherine B. Forrest temporarily ruled the counterterrorism provision to be unconstitutional after a coalition of well-known activists and journalists including Massachusetts Institute of Technology (MIT) linguistics professor Noam Chomsky and “Pentagon Papers” activist Daniel Ellsberg sued President Obama and other members of government.

Forrest declared that the detainee provision bill “lacks the minimal requirements of definition and scienter” and “what are standard definitional aspects of similar legislation that define scope with specificity,” creating the possibility for freedom of speech violations because it does not specify “what conduct comes within its scope.” Judge Forrest’s ruling is still subject to appeal.

The NDAA counterterrorism provision shows a complete disregard for the rule of law, which could lead to disastrous effects for our nation’s standing in the world. The counterterrorism provision grants the U.S. military the power to capture any civilian in any country; asserting this kind of new worldwide authority will surely not be looked upon kindly by other countries.

The provision is an assault to our civil liberties, the Constitution, and the freedom that many have fought decades to obtain. The counterterrorism provision is only one of many bills that are a part of an escalating trend in which we see American civil liberties being assaulted, the latest of which is the Smith-Mundt Modernization Act of 2012. The President and all other government officials have a duty to the people to uphold the laws of the country, and it is the people’s responsibility to remind them when they fail in their duties. Let your voice be heard, and remind your representatives of their duty. Learn how to contact your senators here.

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