National Defense Act Update

My January 3, 2012 blog gave the information that was available at the time the President signed the HR 1540 National Defense Authorization Act (NDAA) bill. Here’s more. 

H.R. 1540: National Defense Authorization Act for Fiscal Year 2012 was introduced Apr 14, 2011 by Rep. Howard “Buck” McKeon [R-CA25] and authorized appropriations for fiscal year 2012 for military activities of the Department of Defense and for defense activities of the Department of Energy. The Act authorized $662 billion in funding, among other things "for the defense of the United States and its interests abroad." In a signing statement, President Obama described the Act as addressing national security programs, Department of Defense health care costs, counter-terrorism within the US and abroad, and military modernization. The Act also imposes new economic sanctions against Iran (section 1045), reviews of the military capabilities of countries such as Iran, China, and Russia, and refocuses the strategic goals of NATO towards energy security.

The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled "Counter-Terrorism." In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority. Although the White House and Senate sponsors maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress "affirms" this authority and makes specific provisions as to the exercise of that authority. The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU), the Bill of Rights Defense Committee, and some media sources which are concerned about the scope of the President's authority, including contentions that those whom they claim may be held indefinitely ‘until the end of hostilities’ anyone the President believes to have “substantially supported” al Qaeda, the Taliban or “associated forces” could include US citizens arrested on American soil, including arrests by members of the Armed Forces. The bill passed the House 283 to 136.

A federal court issued an order prohibiting the indefinite detention powers of the NDAA for American citizens on the grounds of unconstitutionality on May 16, 2012 in response to a lawsuit filed by journalist Chris Hedges, Professor Noam Chomsky, Political Consultant Naomi Wolf and others. US District Judge Katherine B. Forrest ruled the NDAA 2012 likely violates the 1st and 5th Amendments. Issuing a preliminary injunction prevents the US government from enforcing section 1021 of the NDAA's "Homeland Battlefield" provisions pending further order of the court or an amendment to the statute by US Congress.

The Western Center for Journalism published an article on May 19, 2012 saying - the controversial Act has been roundly criticized as unconstitutional by groups on both the political left and right. ... Judge Forrest concluded that the Section “…failed to ‘pass Constitutional muster’ because its broad language could be used to quash political dissent.” In a statement clearly directed to lawmakers, she added,   ”Section 1021 tries to do too much with too little – it lacks the minimal requirements of definition and scienter (intent or knowledge of wrong doing) that could easily have been added, or could be added, to allow it to pass constitutional muster.” That is, Congress failed—perhaps deliberately– to define “substantial support” of terrorist groups or describe those activities which might be construed as crossing the legal line. And no law may be enforced if those to whom it applies are unable to clearly understand what a violation of that law entails. ... According to Democrat Senator Carl Levin, it was Obama himself who demanded American citizens be included under the detention law and that the President have exclusive authority to invoke the statute. “The language which precluded the application of Section [1021] to American citizens was in the bill that we originally approved…and the administration asked us to remove the language which says that US citizens and lawful residents would not be subject to this section,” said Levin after the NDAA was signed into law. In his signing statement Obama wrote that he had forced Congress to “[revise] provisions that otherwise would have jeopardized the safety, security and liberty of the American people. ... 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 ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.” So rather than the grand inquisitor, committing to prison any American citizens he chose to view as enemies, Obama claimed to be their champion and savior, protecting them from the excesses of an over-zealous Congress! This of course was a lie. 

The Department of Justice which defended the NDAA before Judge Forrest will undoubtedly appeal her ruling. It is a judicial process Americans must watch closely as the free exercise of our Constitutional rights depends upon the outcome.