Congress and Obama Ignore Constitution With NDAA 2012
Obama, the biggest critic of Bush’s violation of civil liberties for prisoners of war (POWs), signed legislation removing the constitutional protections of civil liberties for all Americans—not just POWs—on December 31st 2011.
Worse yet, both Democrats and Republicans combined to overwhelmingly pass the legislation with 322 to 96 aye votes in the House and 86 to 13 yes votes in the Senate.
An excerpt from the Section 1021 of the legislation below delineates the risk to all US citizens.
NDAA Subtitle D — Counterterrorism
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) IN GENERAL. — Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS. — A covered person under this section is any person as follows:
(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.
(c) DISPOSITION UNDER LAW OF WAR. — The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
Essentially this section states that the President can use Military Force to detain a “covered person” (defined as any person who has committed a belligerent act) indefinitely without trial. This language remains in spite of protests that it violated the constitutional rights of American citizens. In fact, six amendments have been offered to clarify the language and protect our rights to due process.
Prior to this act, determining the difference between an “act of war” and a lawful protest against government was decided in a court of law by a jury of peers. With the passage of NDAA, and President Obama’s signature, the military now has the right to decide this singly—without any judicial measures or legal representation.
NDAA and the Rule of Law
The provisions of the NDAA reviewed above are clearly unconstitutional. The Fourth Amendment of the Constitution prohibits warrantless seizures of the person or property of US citizens. The Fifth Amendment prohibits the depriving of US citizens of “life, liberty, or property without due process of law.” The Sixth Amendment includes the right to a “speedy and public trial by an impartial jury.”
These amendments are so central to the beliefs of our forefathers that ratification of the Constitution would not have been possible without them. The United States of America was founded as an act of rebellion against the “tyranny of one.” As a result, our founding principle is governing under the Rule of Law.
This means that rather than being ruled by the arbitrary dictates of a powerful man, each of us are ruled by a set of laws that are consistent for everyone, no matter the place or the person. Under the Rule of Law and under the Constitution, no citizen of the United States can be incarcerated without recourse to legal counsel and the justice system in a timely manner.
Under the best-case scenario, even if this law were never used, it radically changes the relationship between the government and the citizens of the United States. The NDAA gives the government legal grounds to use the military, and the threat of indefinite military detention without trial, to put down any form of protest that it decides is a threat to itself by simply defining the protest as a “belligerent act.”
Legislative History of the NDAA
Furthermore the legislative history of the NDAA shows that it was originally intended NOT to apply to American citizens, but later was changed to broaden the definition of “covered persons” to include citizens. Since its passage Congress has continued to defend its application to American citizens.
When the 2012 NDAA was being drafted, according to Senator Carl Levin: “The language which precluded the application of section 1031 to American citizens was in the bill that we originally approved in the Armed Services Committee, and the Administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.” (1031 was the section number in the Senate version, S. 1867, which eventually became Section 1021 in the final legislation—H.R. 1540).
On November 15th, 2011, Defense Secretary Leon Panetta sent the following letter to Sen. Levin explaining the Administration’s concerns with the “weaker” 2012 NDAA: “We recognize your efforts to address some of our objections to section 1032. However, it continues to be the case that any advantages to the Department of Defense in particular and our national security in general in section 1032 of requiring that certain individuals be held by the military are, at best, unclear. This provision restrains the Executive Branch’s options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.”
On November 17th, 2011, President Obama issued a veto threat of the 2012 NDAA because the existing detention provisions could restrict his powers. “The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals.”
The Obama Administration dropped their veto threat shortly after Senator Levin included the flexibility to detain American citizens indefinitely. In fact, when the President signed the 2012 NDAA into law on December 31st, 2011, he claimed he would not use the power, but had it nonetheless.
Pre NDAA Abuses by Government
On September 24, 1862, President Abraham Lincoln issued Proclamation 94, suspending the Writ of Habeas Corpus and proclaimed that: “all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia draft or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law”
Under this order Lincoln detained over 15,000 Northerners, and executed several.
Then on February 19, 1942, President Franklin Delano Roosevelt signed Executive Order 9066, facilitating the military detention of over 110,000 Japanese-Americans without charge or trial.
The order reads as follows: “NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such actions necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commanders may determine, from which any or all persons may be excluded, and with such respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General under the Proclamations of December 7 and 8, 1941, and shall supersede the responsibility and authority of the Attorney General under the said Proclamations in respect of such prohibited and restricted areas.”
Giving the military jurisdiction over certain areas, also known as applying the laws of war to them, was the only authority used in implementing this dark moment in our history.
Neither of these presidential edicts even referenced detention—even though in both cases thousands of American citizens were detained without charge or trial. The only authority needed to indefinitely detain, and violate constitutional rights of liberty, was the law of war.
History has proven that no person, be they President or parking enforcement officer, should be trusted with the unconstitutional power granted in NDAA 2012. Regardless of promised restraints given when requesting power, upon granting, that power will be used. The temptation to justify the use of this power for the safety of the country, even when it violates the Constitution, is far too great.