Her is part one of a three part series on the indefinite detention provisions of the NDAA...
Dear Americans: This Law Makes It Possible To Arrest And Jail You Indefinitely Anytime
Terrorism may not be the worst threat to freedom that we face.
The frightening implications of the National Defense Authorization Act (NDAA)
In 2014 alone, terrorism killed nearly 30,000 men, women and children.
As horrible as this is, terrorism may not be the worst threat to
freedom that we face. The real threat is how quickly we Americans have
given our government carte blanche
to fight the War on Terror. This has already caused far greater damage
to our civil liberties than the terrorists themselves could ever hope to
achieve.
In
2012, the U.S. Congress passed the National Defense Authorization Act
(NDAA) with relatively little attention from the media―despite the
freedoms it obliterated. The NDAA was enacted to empower the U.S.
military to fight the war on terror. But buried in this law are two
provisions (Sections 1021 and 1022) that authorize the indefinite
military detention, without charge or trial, of any person labeled a
“belligerent”―including an American citizen.
These NDAA provisions (which have been re-approved by Congress and signed by President Obama every year since 2012) override habeas corpus―the
essence of our justice system. Habeas corpus is the vital legal
procedure that prevents the government from detaining you indefinitely
without showing just cause. When you challenge your detention by filing a
writ of habeas corpus, you must be promptly brought before a judge or
into court, where lawful grounds must be shown for your detention or you
must be released.
Under
Section 1021, however, anyone who has committed a “belligerent act,”
can be detained indefinitely, without charges or trial, as a “suspected
terrorist.” This is a direct violation of the U.S. Constitution and our
Bill or Rights. In The Federalist
No. 84, Alexander Hamilton stressed the importance of the writ of
habeas corpus to protect against “the favorite and most formidable
instruments of tyranny.”
Only 13 senators voted against the NDAA in 2012, including Bernie Sanders (I-VT), Al Franken (D-Minn) and Rand Paul (I-KY).
According to Dan Johnson, the 23-year-old founder of People Against the NDAA (PANDA), our current presidential candidates do not seem concerned about it either. “Hillary
Clinton has been entirely silent about it, while Donald Trump has come
dangerously close to endorsing it, approving of military trials for
American citizens at Guantanamo Bay just this month,” Johnson notes.
I asked Johnson to explain how the NDAA was passed and what implications it holds for a free America.
Steve Mariotti: How did you learn about this little-known law, the NDAA?
Dan Johnson: Five years ago, I came across a video, 61 senators betrayed you today. A curious political science major, I clicked to find Senator Lindsey Graham on the Senate floor vehemently promoting the idea that “enemy combatants” should not be entitled to due process.
Senator
Graham was speaking in support of the 2012 National Defense
Authorization Act (NDAA), which was signed into law by President Obama
on New Year’s Eve in 2011. The NDAA authorizes the President to order
the U.S. military to detain anyone in the United States without charges
or a trial, until the war on terror ends. During that detention, the
detainee is classified as an enemy spy, a belligerent.
Even if you are an American citizen, you could be tried in military
court, transferred to another country, or even executed... all without
charges or a trial.
For
these reasons, the NDAA is being opposed by groups that span the
political spectrum―from the ACLU to Rush Limbaugh. It has been the
subject of a lawsuit in Hedges v. Obama and is formally banned in several places.
Senator Lindsay Graham promoting the NDAA on the Senate floor.
SM: What is so scary about the NDAA?
DJ:
The NDAA’s detention section harkens back to one of the worst civil
rights violations in U.S. history: when the U.S. government detained
over 120,000 Japanese-Americans, and a few thousand German- and Italian-
Americans, without charge or trial. This abuse was allowed only because
of Executive Order 9066, signed into law by President Roosevelt in
post-Pearl Harbor 1942. The order authorized the Secretary of War and
his commanders to re-designate parts of the United States as military
battlefields.
The
NDAA also applies the laws of war on American soil―except under this
law, everyone, whether an American citizen or not, is robbed of their
rights. Under Section 1021, anyone who has committed a belligerent act,
which even the government could not define when questioned in court,
can be detained indefinitely, without charges or trial, as a “suspected
terrorist.”
In
essence, the 2012 NDAA brought the war on terror home. It is the
authority used to kill American citizens abroad and justify the abuses
at Guantanamo Bay. And now it applies on American soil.
SM: Who are the “covered persons” in the 2012 NDAA?
DJ:
The 2012 NDAA’s detention provisions apply to anyone, anywhere. But who
is most likely to have the NDAA used against them? It depends on how
you define the word terrorist.
The
Department of Homeland Security said that individuals or organizations
“reverent of individual liberty” and “suspicious of centralized federal
authority” pose a threat. The state of Georgia calls publishing “public
records” terrorism. The FBI added the director of an anti-fracking film
to the terror watchlist; and tells business owners to look for
terrorists via “strange odors,” “ordering a specific hotel room,” and
demanding “identity ‘privacy’ in dozens of their documents.
The
government won’t define “terrorist” in order to keep their options
flexible. So it means whatever they want it to mean, at any point. And
under the 2012 NDAA, the term “terrorist” can be applied to whomever
they want to apply it to, at any point.
SM: Does that really mean American citizens could be treated like POWs (prisoners of war) by the military?
DJ: If only we were so lucky. It’s actually worse than that.
The
Geneva Conventions created in 1949 were a set of treaties that
established international law standards for the humanitarian treatment
of people involved in war. The Geneva Conventions split people on a
battlefield into two categories: combatants (soldiers) and non-combatants
(civilians). Under the Geneva Conventions, POWs are captured combatants
protected by international law from torture, starvation and the denial
of medical care.
After
9-11, the U.S. government wanted to get around the Geneva Convention’s
ban on torture of combatants so it created a new category: unlawful enemy combatant,
i.e. a “terrorist.” This is a person who took up arms on a battlefield
but is not entitled to POW protections. As Department of Defense General
Counsel William Haynes wrote in a letter to the Council on Foreign Relations,
regarding Guantanamo Bay: “All of the detainees are unlawful combatants
and thus do not as a matter of law receive the protections of the Third
Geneva Convention.”
In 2009, Congress passed the second Military Commissions Act, which quietly replaced unlawful enemy combatant with unprivileged enemy belligerent.
Both noncombatants and civilians could then be categorized as “enemy
belligerents,” and denied their Geneva Conventions rights.
When
the United States executed American citizen Anwar-al-Awlaki and his son
in Yemen via drone strike on September 30, 2011, the rationale for the
attack was that al-Awlaki had been labeled “an unprivileged enemy
belligerent.” Under the 2012 NDAA, any American citizen can now be
labeled
the same
the same
SM: Who is making the decision to implement this?
DJ:
The 2012 NDAA grants one person in particular, the president of the
United States, the authority to determine who is and is not considered a
“suspected terrorist.” But he can designate that authority to anyone he
would like, and we would not know because it would be considered a
State Secret.
It
was introduced in the Senate by Senator Carl Levin (D-MI) and a
concurrent version was introduced in the House by Rep. Buck McKeon
(R-CA). It was bipartisan legislation, passing 93-7 in the Senate and
283-136 in the House.
A
previous champion of the fight against the NDAA was Rep. Justin Amash,
but recently, no representative in either house has introduced
legislation to curb the NDAA. It is the realization of one of my
greatest fears: once Americans forget about this legislation, that’s
when it will be used en masse.
SM: Are American civilians currently being detained under NDAA?
DJ: The scary thing is that we do not actually know. Why?
- The government does not need a warrant to detain you.
- The government does not have to produce any record of your detention.
- The military, unlike the police, does not need to take record of your arrest.
Congress
tried and failed to pass a provision that would have required the
Secretary of Defense to submit a list of detainees under the NDAA to
Congress every year.
In Hedges v. Obama,
a case brought by journalists and activists who believed the NDAA’s
detention provisions could be used to detain them, the government
refused to confirm or deny that these provisions were in play right now.
Judge Katherine Forrest agreed that the NDAA “does not pass muster
under the First Amendment itself” and issued a permanent injunction
preventing the enforcement of the NDAA.
In
response, the Federal government immediately applied for an emergency
stay to delay the case This very fact hints that the government is
probably holding American civilians under the NDAA. We just don’t know
where.
SM: When will this bill expire?
DJ:
When will the war on terror end? That’s when the NDAA powers expire.
America entered this war with the Authorization for Use of Military
Force in 2001, which authorized “necessary and appropriate force” to go
after Al-Qaeda and the Taliban, and to go to war in Afghanistan. It is
also the same bill quoted by the 2012 NDAA.
So
when the war on terror ends, that’s when these extraordinary military
powers will end. And in all probability, the answer is never.
If you would like to help stop the NDAA, visit PANDA’s Take Back Your Town page here.