Defense Act 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. 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 are merely “suspected” of sympathizing with or providing any level of support to groups the U.S. designates as a 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, covering U.S. persons, 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 as not just subject to indefinite detention, but even to 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 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 a recent segment, “You now live in a country where, technically at least, the military has a legal role to play in civilian law enforcement.” The ND- AA’s detention provisions have received most of the attention, 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 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 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 NDAA increases U.S. 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, HR 3702—co-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.

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. 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 is up to the American people to stop this fear-mongering and the unfettered growth of the military industrial complex. How? Americans can begin by actively dissenting against laws that violate their Constitution and their conscience. Zinn believed very strongly that “dissent is the highest form of patriotism.”

If the Constitution is to be defended, all Americans have a duty to demand progressive change toward a culture of peace and justice. One of the most effective ways to do this is by engaging in 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.

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Brian J. Trautman is a veteran and an instructor of peace and world order studies at Berkshire Community College, Pittsfield, Massachusetts. He is a member of Veterans for Peace and Berkshire Citizens for Peace and Justice.