Nullify the NDAA

Here is an excerpt from a new article of mine, published by

On Dec. 31, 2011, while Americans celebrated the arrival of the new year, President Obama signed into law the National Defense Authorization Act (NDAA). This was nothing unusual in and of itself, as Congress approves an annual defense spending bill. What made the 2012 NDAA particularly newsworthy are sections 1031 and 1032, which allow the president to use U.S. military forces to indefinitely detain American citizens who are merely suspected of having involvement with a terrorist organization.

For those largely unfamiliar with the NDAA controversy, I will cite a portion from aprevious article detailing the controversy:

Section 1031 of the bill begins: “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.”

The “covered persons” are defined as:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a 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. [Emphasis added.]

In other words, the president can authorize the military detention of anyone who is merely suspected of being involved with a terrorist organization, which are not strictly defined.

Section 1032, “Requirement for Military Custody,” grants that the “Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force in military custody pending disposition under the law of war.”

Who are the persons described in paragraph 2? Again, it is anyone who is determined

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

Now, the section goes on to state that “the requirement to detain a person in military custody under this section does not extend to citizens of the United States” or to a lawful resident alien of the United States. Some have claimed that this exempts American citizens and lawful aliens from military detention, but note that it only exempts them from the requirement of such detention in military custody. In other words, the military may not be required to detain them, but it is allowedto do so.

An outspoken advocate for the bill, South Carolina Sen. Lindsey Graham argued:

If you are an American citizen and you betray your country, you’re going to be held in military custody and you’re going to be questioned about what you know. You’re not going to be given a lawyer if our national security interests dictate that you not be given a lawyer and go into the criminal justice system. We’re not fighting a crime; we’re fighting a war.

Of course, the NDAA does not address those who “betray” their country, only those who are suspected of having connections with terrorist organizations (a term not strictly defined in the bill). After all, due process in the United States requires proof of guilt beyond a reasonable doubt, whereas the NDAA acts outside of due process. The assumption of the NDAA, then, is guilt before and even without trial, conviction outside of legal procedure.

Click HERE to read the rest of the article.


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