By: Sam Laughlin
On December 31, 2011, less than 12 hours from ringing in the new year, the President of the United States signed into law one of the most controversial bills in recent memory.
The National Defense Authorization Act, or NDAA, is a bill signed into law every year that stipulates budget provisions and operational guidelines for the U.S. Department of Defense. The bill covers everything from rules of engagement to veteran pensions. Most years, the bill passes across the President’s desk with little attention, but this year several specific sections sparked outrage by the media and the American public. controversial bills in recent memory to enlarge the scope and power of the United States government.
The controversy primarily extends to sections 1021 and 1022 of Subtitle D, Title X of the act. Subtitle D designates military procedures for operations in counterterrorism, with sections 1021 and 1022 focusing on the military’s authority to detain enemy combatants.
Using the Authorization for Use of Military Force (50 USCS § 1541) as a jumping-off point, section 1021 enlarges the military’s power to detain any al Qaeda, Taliban, “associated forces,” or any person who “has committed a belligerent act or has directly supported such hostilities” without trial “until the end of hostilities.” Let that last sentence sink in for a moment.
What is a “belligerent act”? What is an “associated force”? How exactly do you reach the “end of hostilities,” when terrorism can never actually be defeated, as it is a method of attack and not a single enemy force?
This vague language only continues. Section 1022 reads in a similar fashion, granting the military power to hold detainees captured abroad, but with a few differences. Subsection (b)(1) appears as though it was drafted to calm the minds of US citizens worried about being carted off to Guantanamo: “United States Citizens. – The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”
At first glance, this language reads like an affirmation of American liberty, but read it closely. First off, it only applies to section 1022, not section 1021 (“…this section…”). Secondly, the phrasing of “The requirements to detain” is a bit vague and meaningless. So, the government is not required to arrest potential US citizens, but does that mean the government is prohibited from arresting US citizens? And where is this provision in section 1021, where it would be most useful?
The President himself stated that he passed the bill with deep reservations about these controversial sections:
“The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” – Statement by the President on H.R. 1540, from http://www.whitehouse.gov.
Civil liberty organizations and many freedom-loving Americans on both sides of the aisle have exploded over the President’s indifference. If he had reservations over the provisions, why not fight it?
The answer is, like most things in Washington, more political than scary. Sections 1021 and 1022 are only two of thousands in an over-500 page document. Were the President to take a stand against them, the entire operation of the military would cease, as would military personnel paychecks. In an election year, this would be political suicide.
Besides, the power given to the President and the military under 1021 and 1022 is nothing new. The United States has been holding vaguely termed “enemy combatants” prisoner without trial in Guantanamo for over a decade. The Authorization for Use of Military Force statute allowed the President similar power in the past, and has been upheld by the Supreme Court of the United States. If anything, the bill codifies powers the government has exerted for decades, now out in the open for all to see.