I feel compelled to write yet another piece about the National Defense Authorization Act of Fiscal Year 2012. The bill that was approved in recent days by both the House and Senate and now awaits Pres. Obama's signature. I wish to point out that the current language of the bill does not undermine or subvert the rights of US citizens as guaranteed by the Constitution and the Bill of Rights.
This will be the fourth piece I have written about the NDAA 2012 in the past two weeks. I would prefer to move on to more fun topics, and I suspect many readers will be tired of reading about this topic. In two previous articles, I have been highly critical of the bill for including two questionable measures that undermined important constitutional safe-guards. However, as House and Senate versions of the bill were reconciled, new language was included that changed how these two measures are to be applied. I now feel compelled to again write about the NDAA 2012. In short, I think the record needs to be set straight.
The NDAA 2012 contains two controversial measures. Section 1032 of the bill requires the US military to hold persons captured during the course of hostilities in military custody. However, the bill includes language in paragraph (1) and (2) that plainly states this measure does not apply to US citizens and does not apply to lawful resident aliens regarding their conduct occurring in the US. So no one can claim this measure nullifies constitutional guarantees for US citizens regarding a trial by jury, access to legal counsel, habeus corpus, or indefinite detention.
Note: interested reader can view the full text of the NDAA 2012 at the Library of Congress website (here: http://thomas.loc.gov/...). Both previous and current versions of the bill are available to view. The current bill is labeled National Defense Authorization Act of Fiscal Year 2012 (engrossed in Senate [passed in Senate] – ES. The text for Sections 1031 and 1032 begins on page 426 of the .pdf document
Section 1031 of the NDAA authorizes the US military to detain members of al-queda, the Taliban, and associated forces, and persons who supported aggressive acts against the US. Persons who are detain may be held indefinitely without a trial. This section makes no mention of where the US military can take such actions, so presumably, actions by the US military within the US are authorized. This measure is highly controversial because it appears to undermine the US Constitution Article III guarantees to a trial by jury, habeus corpus protections, and Amendments V, VI, and VIII. However, this section includes paragraph (e), which says:
“Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”
This language indicates that Section 1031 of the NDAA can not be used to weaken or remove constitutional protections for US citizens against indefinite detention, or the right to habeus corpus, or a trial by jury.
Sections 1031 and 1032 of the NDAA have received a lot of criticism as attacking and undermining the constitutional protections for US citizens. But, the most recent version of the bill now includes language that specifically addresses the rights of US citizens and how these measures will be applied to US citizens. Some of this language was missing in earlier versions of the bill, and critics were correct in pointing out the dangers to our constitutional rights (full disclosure: I was one of those critics). As it stands now, I must conclude that the NDAA 2012 is not the constitution-destroying bill that many fear.
Notice what I am not saying here. I am not saying that the NDAA 2012 is a great bill and the president should sign it or veto it. I am not saying the bill forbids the US military from detaining suspected terrorists; I am not saying the bill forbids the US military from taking military actions here in the US; I am not saying the bill puts limits on detention for those held on suspicion of terrorism, or that the bill guarantees legal due process for those arrested on suspicion of terrorism.
Furthermore, I am not saying that the constitutionally-protected rights of citizens are not under attack and in danger from our very own government. And I am not saying that those US citizens who take action to protest government excess are safe from being labeled enemies of the state. The Patriot Act, signed into law by George Bush in 2001 and renewed and expanded by Pres. Obama's signature in 2004, erodes the Fourth Amendment protections against unwarranted search and seizure by allowing law enforcement agencies broad powers to search citizens' private telephone and email communications without judicial review, search through medical, business, and financial records again without judicial review, and eased restrictions on using foreign intelligence gathering methods within the US. The bill also widened the definition of who can be considered an enemy of the US, to include all those who provide “material assistance” to “terrorists”. The NDAA 2012 adds to this definition any (non-citizens) who commits a belligerent act or supports hostilities in aid of enemy forces.
I imagine saying the NDAA 2012 is not a constitution-nullifying bill will be an unpopular stance among many liberals and progressives. It flies in the face of liberal conventional wisdom and public opinion. But I write this not to aggravate the progressive community, but because I feel that as liberal sand progressives, we should speak of truth and reality, and not about what we imagine or what we fear. We have many good reason to fear for the rule of law in our country and our constitution and our freedoms and liberties. But the NDAA 2012 as it is written now is not the major threat to our constitution and the citizen rights guaranteed within.
Anyone interested in reading what I have previously written about the NDAA 2012 can do so here:
- http://www.dailykos.com/...
- http://www.dailykos.com/...
- http://www.dailykos.com/...(c)-Authorities?showAll=yes&via=blog_796361