THE NDAA IS WORSE THAN WE THOUGHT
On December 31, 2011, President Obama signed into law the National Defense Authorization Act of 2012. Section 1021 of that law permits the indefinite military detention of American citizens on a mere suspicion of a connection, however remote or unintended, with a terrorist group. It was the death blow to a Constitution that was already on life support.
On January 13, 2012, concerned writers and activists, including journalist Christopher Hedges, activist Daniel Ellsberg, writer Noam Chomsky, and peace activist and member of Iceland's Parliament Brigitta Jonsdottir filed suit to enjoin enforcement of this provision of the Act. Through their lawyers, they claimed that Section 1021 violated rights of Free Speech found in the First Amendment, and Due Process found in the Fifth Amendment. They won. At least for now. (It is probable that the government will appeal to the U.S. Circuit Court of Appeals (2nd Circuit).
On May 16th, 2012, United States District Court Justice Katherine B. Forrester rendered an opinion that restores hope that our Courts will actually defend the Constitution. Justice Forrester found Section 1021 to be unconstitutional and therefore unenforceable, on both grounds raised by the plaintiffs.
Shortly after September 11, 2001, Congress passed the Authorization of Use of Military Force, (AUMF) giving the President nearly unlimited authority to use military force against the perpetrators of the New York terrorist attacks or anyone aiding them. It states:
"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
President Bush and President Obama have both used this legislation to justify military actions in multiple countries. Section 1021 of the NDAA begins by reaffirming this authority. It goes on to bring this authority for use of military action to American soil and against American citizens.
The section states that the President has the authority to detain "covered persons pending disposition under the law of war". A "covered person" is defined as "any person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Further, the disposition of such person may include the following: "detention under the law of war without trial until the end of hostilities authorized by the AUMF (and) ". transfer to the custody or control of the person's country of origin, or any other foreign country or any other foreign entity".
Proponents of the law point to two additional subsections which they claim protect American citizens. Section (d) states that "nothing in this section is intended to limit or expand the authority of the President or the scope of the AUMF". Section (e) states that "nothing in this section shall be construed to affect existing law or authorities relating to the detention of American citizens". Advocates argue that these sections ensure that section 1021 adds no new powers to the executive, and that American citizens retain the protections of the Constitution and the Bill of Rights. Indeed, President Obama, upon signing the Act into law stated:
"Section 1021 affirms the executive branch's authority to detain persons covered by the AUMF. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then" Moreover I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens " My Administration will interpret section 1021 in a manner that insures that any detention authorized complies with the law".
The President's assurances, however, are no assurances at all. During Senate debates on the section, Carl Levin made clear that his subcommittee included the offending language at the request of the White House. Under this administration, and that of former President George W. Bush, American citizens have been detained; in addition, the filing of charges and the scheduling of trials have been delayed beyond any reasonable time period. The President has even ordered the murder of an American citizen. So when the President claims that the NDAA "breaks no new ground" he is quite right. He and his predecessor have already been exercising extraordinary extra-constitutional powers against American citizens for some time.
Proof? What proof?
Criminal laws and cases provide that the government cannot intrude on a citizen's person or privacy without "proof" of wrongdoing. The stronger the proof, the greater the intrusion permitted. When the government can prove the crime "beyond a reasonable doubt", it can impose punishment, sometimes severe. To merely arrest, however, the government needs only "probable cause" to believe that an individual has committed a crime. "Probable cause" was the most easily met level of proof and was clearly established in the Fourth Amendment to the United States Constitution.
The NDAA references no specific level of proof that the government must meet before "detaining" a citizen. The AUMF, reaffirmed in the first paragraph of Section 1021, merely states that the President can act against individuals "he determines" were involved in the terrorist attacks. But this does not establish a minimum level of proof. "He determines" can mean anything. In fact, it can mean no level of proof whatsoever - just the whim, fantasy or caprice of a President or his designee.
However, in Section 1021 Congress uses the word "detain". That may give us a bit of hope that some level of proof is required.
The U.S. Supreme Court in the 1968 case of Terry v. Ohio legitimized law enforcement intrusion on citizens' persons and privacy on something less than "probable cause". The Court recognized a new phenomenon called the "stop and frisk". This new principle of law permitted law enforcement officers to temporarily detain citizens when there was a "reasonable suspicion" that the citizen was engaged in criminal activity. An important distinction was drawn between a "detention" and an "arrest. A "detention" was temporary in nature, and permitted law enforcement officers to investigate suspicious activity. An "arrest", by comparison, was the taking into custody of an individual with the intent to charge him with a crime.