17 December 2011

NDAA


The White House is signing off on a controversial new law that would authorize the U.S. military to arrest and indefinitely detain alleged al Qaeda members or other terrorist operatives captured on American soil.
As the bill neared final passage in the House of Representatives and the Senate on Wednesday, the Obama administration announced it would support passage of the National Defense Authorization Act (NDAA), which contains slightly watered-down provisions giving the military a front line role in domestic terrorism cases. [Hat tip: Prof. Hale]

In many ways the 2011 RDAA is like SOPA:  one step closer to totalitarianism but not quite there yet.

Before getting into the specifics of the bill, it is first crucial to understand that this is very much a political game (duh).  The NDAA is a bill that is presented annually, and is used to determine defense funding and obligations.  Since the president doesn’t have line-item veto, he would have to veto the bill entirely to avoid codifying the permission given to the armed forces to detain terrorists in the United States.  Since it is already the middle of December, and the bill’s main purpose is fund appropriation for defense, it would be political suicide for him if he vetoed the bill since it is very possible that enacting a modified bill would take too much time, and drag on into the new year, thus causing the Department of Defense (and by extension the USAF) to be without funds.

I’m not entirely sure about this, but it may be that this provision would have to be renewed every year along with the rest of the bill, which means the provision could be removed when this bill is up for renewal next year.  Furthermore, there is nothing preventing a group like, say, the ACLU from challenging this provision and taking the case to the Supreme Court.

Now as for the bill itself it is important to first note that the armed forces are only permitted to target those associated with all terrorist organizations that perpetrated the terrorist attacks that occurred on September 11, 2001 (per section 1031).  1032(b) exempts citizens from being taken into custody by the military.  Thus, by the technical considerations of the law, this is not an encroachment on citizens’ liberties.

However, there are exceptions to the due process rules in 1032(a)(4), and the language is ambiguous enough to be troubling.  I would imagine that 1032(b) supersedes the national security exemption, but it does not appear to be beyond the realm of possibility for a zealous conservative judge to rule that the general principle of acting in the interest of national security supersedes citizens’ rights.  But this matter is far from clear.

Taking a long-term view of things, it is not clear that the general trend toward martial prosecution of domestic terrorism is itself unconstitutional.  Article I, Section 8 states that congress has the authority to “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  Article III, Section 3, states that congress has the power to punish those who commit treason (and those who perpetrate acts of terror against the United States can rightfully be considered to have committed treason).  It is therefore reasonable to say that congress can delegate the punishment of those who have been convicted of committing treason to the Armed Forces.

It should be noted, though, that Congress is not compelled to do this. As such, aiding the enemies of the US is the very definition of treason, so any citizen who helps al Qaeda or any other enemy may now be legitimately prosecuted by the US Army.  Again, though, it doesn’t have to be this way.

Additionally, the prosecution of treason does not authorize the suspension of habeas corpus, presumption of innocence, trial by jury, or any other constitutional safeguard of liberty.  Furthermore, one cannot be convicted of treason without the testimony of two witnesses, in open court.  Citizens thus still retain all their rights of due process, even if accused of treason.

Thus, one major issue to consider is the practicality of such an approach.  It may be constitutional to have the USAF prosecute domestic terrorism, but it may not be prudent.  Quite simply, the supporters of this bill seem to fail to consider the implications of giving the military authority over domestic security.  This concern is particularly important in light of the national security exemption contained in this bill.  Quite simply, this bill can be used as a foundation for later unconstitutional behavior.

Finally, this bill fails to consider the general redundancy of the provisions of sections 1032, 1034, and 1035.  There are already several agencies that have been authorized to prosecute and prevent domestic terrorist activities, like the FBI and DHS.  Adding the USAF to this duty suggests that at least one of the agencies isn’t needed for this task.  As such, congress should considering either relieving the USAF of this duty or abolishing the DHS.  The United States simply does not need (nor can it afford) to have two agencies tasked with this mission.

5 comments:

  1. "Quite simply, the supporters of this bill seem to fail to consider the implications of giving the military authority over domestic security. "

    Indeed. And if my bros who are in the military are any indication, they look upon this legislation with dread.

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  2. I hear a lot about how military guys dread the expansion of government power, particularly when it means the increased militarization of law and order. However, I don't hear of many speaking out against it, or even acting against it. If the many in the military so loathe these federal policies, why don't they rebel?

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  3. I hear a lot about how military guys dread the expansion of government power, particularly when it means the increased militarization of law and order. However, I don't hear of many speaking out against it, or even acting against it. If the many in the military so loathe these federal policies, why don't they rebel?

    The gentlemen and ladies of the USA military are under a lot of personal constraints. They are not independently wealthy landowners who can resign their commissions and retreat to their libraries to write thoughtful essays about the relevance of Jefferson to the modern world.

    Some fine fighters are on food stamps, even though they work and avoid vice.

    Some intellectuals feel they must preserve their security clearances.

    Some of them are cynical and personally exhausted due to undiagnosed PTSD and related depression.

    Recently I heard of a certain high-ranking NSA spook who risked his career to blow the whistle on some things. I'll try to dig up his name.

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  4. Days before he was set to go on trial on charges that he illegally retained classified documents, NSA whistleblower Thomas Drake has agreed to plead guilty to a lesser misdemeanor count of exceeding authorized access to a computer.

    Drake had been charged under the Espionage Act ...

    Drake’s revelations to the Baltimore Sun exposed the government’s waste and mismanagement of the programs.

    Last year the government had dropped a criminal investigation of another whistle blower who helped expose the Bush administration’s warrantless wiretapping program to the New York Times in 2004.

    Thomas Tamm had held a Top Secret/SCI clearance at the Justice Department’s Office of Intelligence Policy and Review when he discovered the illegal NSA program and tipped off the Times.


    http://www.wired.com/threatlevel/2011/06/drake-pleads-guilty/

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  5. "The gentlemen and ladies of the USA military are under a lot of personal constraints. They are not independently wealthy landowners who can resign their commissions and retreat to their libraries to write thoughtful essays about the relevance of Jefferson to the modern world."

    I understand that soldiers are often in positions where they can't simply up and resign their commission and post. However, it does feel a little hollow to hear how they oppose this sort of expansion of federal power and then watch them not do anything about it. Do they not realize that they are the ones that give the government its power? Or are they unsure of how to go about undoing the expansion of federal power? Or is their opposition to this sort of thing simply a sigh of exasperation at the additional inconvenience that this undoubtedly entails?

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