NDAA Isn’t Nada

The National Defense Authorization Act for 2012 was signed into law on the last day of 2011. This is the act that the President must approve every year so that the military can receive their budgeted funds. Arguments around the military budget aside, the hot issue of this act is the provisions around military detentions. This issue didn’t really get the attention they deserve in the media, and is confusing when you try and find more information. Matter of fact, if you search CNN’s homepage for the act or NDAA, as it is know, you will find zero. Literally it will ask you-as if you made a typo – if you were searching for nada. (Shame on you CNN).

The contentious language of this bill has been tinkered with to walk the finest of lines to appease civil libertarians (fail). An article from Mother Jones reports:

It does not, contrary to what many media outlets have reported, authorize the president to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US. A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won’t be based on the authority in this bill.

Cofused? Sounds like kicking the can down the road to me.  Instead of removing the portion that talked about the military detention of terrorist suspects without charge or trial, this messy abdication of responsibility allows any future president to decide for themselves. Then Obama used a signing statement to try and emphasize the reservations that he had upon signing off on the questionable military detention section – after he failed to follow through on his veto threat.

Close only counts in horseshoes – this bill was passed and signed and it is up to anyone in the future to apply as needed wherever, whenever, and to whomever they see fit. Everyone knows that once you sign off on something, it really doesn’t matter how you spin it, the contract is what counts. Signing statements themselves are a sort of cop out mixed with a power grab that have been used by presidents before George W. to clarify their interpretation or opinion of the bill, but W. definitely used them strategically and blatantly to contradict some of the bill he was signing.  Basically, whatever Bush wanted to do in lieu of the law passed, he said that he could do it because he was authorized as the president to do what he saw fit in the interests of national security. Often times, for his presidency, that meant the law would effectively be nullified. Obama is also using signing statements, though he promised not to use them in the same way Bush had.

It could be argued that Obama’s signing statement was not used like Bush’s. Bush effectively accepted Congressional bill passage as only advisory in creating the law of the land, Bush began writing the law himself and was not challenged in court. Until a signing statement is challenged in court, we won’t know how much power is actually gained by the office for writing them. Building up a history of signing statements that rewrite the intentions of the bills they are attached to is a definite power for the Office of the Presidency as well as whomever is the current acting President. Bush’s signing statements fundamentally shifted power in our three pronged system of government, from the congressional to the executive branch. Ultimately the judicial branch will decide if it sticks.

The signing statement that he attached to the NDAA 2012 bill states, “my administration will not authorize the indefinite military detention without trial of American citizens.” Which might at first feel good to liberty lovers, but notice the “my administration” part. A future administration – which could come as early as January of next year – can authorized the military to detain American citizens indefinitely for being a terrorist suspect.

That’s messed up and unconstitutional.  The last time indefinite detention was signed into law, McCarthyism followed. Not just indefinite detention, but indefinite detention without charge, without trial, the military can – on American soil – play the role of civilian law enforcement if they see fit. This flies in the face of habeas corpus  in article 1 of the Constitution – the law that means the detainor must prove to a court that they have a good cause for keeping the detainee in custody – and due process – part of the 14th amendment that guarantees our life, liberty and pursuit of happiness won’t be impinged upon without due process of law. It also tramples the 5th and 6th amendments – which covers detention during wartime and rights guaranteed to criminals in their process of seeking justice.

This year’s NDAA is awful for anyone that wants our country to abide by the Constitution. It weakens our stance in the world, and says that authority rules without any check or balance. This is antithetical to what our country is supposed to be. Due process is about equality, justice, transparency, and accountability. These are all extremely important values to progressives as well as libertarians. Ron Paul is using his campaign stump to call for the repeal of the NDAA. What the act does is take the power away from an authority we’ve collaboratively agreed upon – the Constitution – and hands it to an individual that may or may not make wise and rational decisions. Which do you prefer? A human leader can be charismatic and easier to rally behind – when they are agreeing with your views. A document is a little harder to stay excited about, especially when it is static and a leader can be as dynamic as current events.

Conservatives respect authority, but most don’t particularly respect (or accept) the authority of the current president. Progressives empathize with the potential innocent folks that could be caught in the witch hunt. This act isn’t resonating with anyone’s values, maybe that’s why Obama got lambasted from the left and right when he signed it. Maybe that’s why they are holding hearings about it right now. It seems like a great time for all of us to contact our Congress people to let them know that we’d prefer to keep the authority of the Constitution in tact. Here is a link to find your reps and senators, let ’em know what you think.

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