The National Defense Authorization Act of 2012, designed to defend the U.S., contains ominous provisions that could undermine basic freedoms. Two weeks before the President Obama signed the NDAA on Dec. 31, 2011, the ACLU released a statement explaining parts of the legislation “could authorize the U.S. military to pick up and imprison, without charge or trial, civilians anywhere in the world.”
Many opponents of the NDAA are concerned the bill could foster indefinite detention and the practice could be expanded to jail innocent people, instead of suspected terrorists.
The NDAA has been a routine bill the president always signed to grant annual funding to the Department of Defense, according to an article by Robert Johnson for Business Insider. Senate Armed Services Chairman Carl Levin, D-Mich., and Senator John McCain, R-Ariz., sponsored the provisions for the legislation. Though Obama vowed not to approve the NDAA if it included such amendments, he changed course.
Sen. John McCain cosponsored the controversial provisions that were added to the National Defense Authorization Act of 2012. Photo courtesy of the U.S. Congress.
Funding for the Department of Defense was about to expire and the provisions were added at the last minute, according to a Washington Post article by David Nakamura. The president decided to act.
“I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists,” Obama said in a signing statement that accompanied the legislation.
Margaret Stock, an Alaska-based attorney specializing in immigration law and national security issues, explained the NDAA is a huge bill and it is common for senators and representatives to insert provisions that could never pass on their own. Most people are unaware the president can only veto entire bills, not parts of them.
“[Presidents] don’t want to veto the whole bill because it’s going to cause a whole bunch of stuff that they want to be disapproved,” Stock said.
The Authorization to Use Military Force provided a foundation for some of the language in the NDAA. The AUMF became law on Sept. 18, 2001.
The joint resolution between the House of Representatives and the Senate authorized the president of the United States “to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
President George W. Bush speaks to Congress on Sept. 20, 2001. Two days before the speech, the House and Senate approved the Authorization to Use Military Force, which allowed Bush to attack Afghanistan and Iraq. Photo courtesy of the U.S. National Archives.
Obama’s detention authority statement, documented in a court brief from March 13, 2009, incorporated similar language to the AUMF, according to a report by the Congressional Research Service, authored by two legislative attorneys, Jennifer K. Elsea and Michael John Garcia.
“The President has the authority to detain persons that the President determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks.”
The statement also notes the president has the power to detain persons who supported al Qaeda, the Taliban or associated forces engaged in hostilities with the U.S.
The report discussed the conflict about whether Obama’s detention authority statement exceeded the bounds of the AUMF and the power of the executive. For example, how would the military determine if a group or person were an associated force? In a 2009 brief, the government refused to give details about how such a decision would be made, explaining it was not possible or even advisable to speculate about such matters.
According to the government’s brief, the term “associated forces” would become better understood as it was applied to real situations and reviewed on a case-by-case basis.
Consequences of the NDAA
If U.S. citizens were detained as a result of the NDAA, Obama promised to ensure they would be granted a trial.
“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens,” the president wrote in the signing statement.
In order for a person in military detention to be given a trial, the president must send permission in writing to Congress to grant the detained person the ability to receive judicial process.
Andrew Rosenthal, the editorial page editor for The New York Times, described issues he sees with the NDAA. One of his major concerns is the expansion of power the law grants the president.
“I think it’s barely possible that Mr. Obama would sign a waiver of military detention when warranted,” Rosenthal wrote. “But it’s impossible to imagine a Republican successor doing that.”
Rosenthal explained Obama’s approval of the NDAA is a sign he is approaching national security issues the way George W. Bush did after the Sept. 11 attacks. While fear gripped the nation in September 2001, Republicans passed the Patriot Act and the AUMF. By allowing the counterterrorism provisions to become law, Obama is putting civil liberties and human rights at risk.
Although Obama said he would not allow U.S. citizens to be detained without a trial, he can, of course, change his mind. For example, Obama chose to add a signing statement to the NDAA. Signing statements are a way for a president to protest parts of legislation, but they have no legal power whatsoever, Stock said.
During his presidential campaign, Obama criticized Bush for repeatedly adding signing statements to bills.
President Barack Obama smiles during the filming of a campaign video in 2011. He signed the National Defense Authorization Act of 2012, even though he disagreed with provisions about the detention and treatment of suspected terrorists. Photo by Christopher Dilts, courtesy of Fotopedia.
The vague nature of the language in Sections 1021 and 1022 of the NDAA, such as the mysterious meaning of “associated forces,” is common in legislation that relates to national security, Stock said.
The Congressional Research Service report also noted additional terms in the NDAA that lacked clarification. It is not made clear in the language of the law what is considered “substantially supporting” al Qaeda or the Taliban. The word “hostilities” is similarly indefinite, as no detailed description of it exists in the NDAA.
According to the report, the full meaning of the terms, “may be subject to an evolving interpretation that effectively permits a broadening of the scope of the conflict.”
Stock said the application and development of laws regarding apprehending and prosecuting terrorists and their supporters during the last 10 years has been irregular.
“There hasn’t been a whole lot of consistency in any of this stuff,” she said. “It just depends on the facts of a particular situation and who’s in charge at the time.”
AUMF and war
The conflicts about the expansion of executive powers and the nebulous structure of national security protocol are not new.
“There’s an ongoing, long-standing constitutional debate about who within the federal government is allowed to use force,” Stock said.
According to the Constitution, only Congress is authorized to declare war. Many people accept this idea, but also believe it is necessary for the president to respond to a sudden attack on the U.S., Stock said. The language in the Constitution was intentionally drafted for Congress to be able to “declare war” rather than “make war,” so it was possible for the president to respond to an invasion or attack on the nation.
“The problem with that is over the centuries, presidents have taken that language that originally people thought would only apply if some army attacked the United States suddenly and they have used it to expand presidential authority,” Stock said.
Presidents, such as Lyndon B. Johnson handling the Gulf of Tonkin resolution and Ronald Reagan’s actions in the Gulf of Sidra, have rationalized military aggression toward countries that had not actually attacked the U.S., Stock said. In both cases, the presidents claimed U.S. military strikes were based on retaliation, when in fact U.S. ships were intentionally guided into enemy waters in the first place.
“Wars can get started by presidents just triggering an attack on the U.S.,” she said. “That’s caused a great deal of upset among members of Congress who think that they’re supposed to have the war power and the president’s not supposed to have it.”
The AUMF was an attempt by Congress to authorize and to support the president using force. An official declaration of war has not been made since World War II because doing so would cause tedious and unpopular consequences. For example, it is still required to set up internment camps to hold citizens in the U.S. who are from the nation(s) the U.S. is fighting, Stock said.
“[Congress authorizes] the use of force so it doesn’t trigger all these other laws applying,” she said.
Although the AUMF is more than 10 years old, it still justifies the wars in Iraq and Afghanistan.
“Congress is trying to exercise its constitutional duties in a piece of legislation to show it’s supporting the president,” Stock said.
As far as the language of the law is concerned, the U.S. has engaged in hostilities in the Middle East. The controversial provisions in the NDAA seem to reiterate many of the same powers the AUMF authorized to the executive.
Under the NDAA, a person or group considered an “associated force” during “hostilities” may be held indefinitely in military detention for “substantially supporting” terrorists until the end of said “hostilities.” It is up to the judgment of President Obama, and the judgment of all future presidents, to decide what the language of the NDAA really means.
Stock is concerned many U.S. citizens don’t understand the potential ramifications of the NDAA of 2012. Furthermore, she thinks most voters are unaware of the breakdown between the legislative and executive branches, which has increased the president’s power to use force.
“It’s very important for people to be careful who they elect president,” Stock said. “Because whether they end up in jail or not is going to depend on who they elect to be president.”