Tuesday, December 6, 2011

Approaching NDAA-game

You may have seen it whipping around the Internet recently in yet another example of near-powerless fury: the United States' National Defense Authorization Act for the 2012 fiscal year, or just NDAA. It's a bill that has been passed and revised and passed again every year since the 1960s to codify how the Department of Defense can spend all those hundreds of billions of dollars that get shoveled its way. What's got people riled up this time is an innocuous passage buried deep within its six hundred and sixty-six pages; a passage that would allow the United States military to arrest and imprison civilians anywhere in the world without charge or trial. It's telling that a lot of the opposition to this is specifically focused on the idea that it could be American civilians arrested and imprisoned; presumably, it's A-OK for Eagleland to throw as many foreigners as it wants into a deep, dark hole and never let them out.

The problem, though, is that it's not honest. I've read the bill, and it doesn't have the balls to come out and say exactly that. No, it's all couched in legalese that appears designed to be as impenetrable and ordinary-seeming as possible - impenetrable enough that even though the bill is dated June 22, its potential implications have only been realized fairly recently. The big issues are with Section 1036 - but don't take my word for it; read it yourself.


(a) In General- Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) for purposes of section 1031.

(b) Elements of Procedures- The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.

(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

(c) Report on Modification of Procedures- The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect.

(d) Appropriate Committees of Congress Defined- In this section, the term 'appropriate committees of Congress' means--

(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and

(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.

And now I've gone all crosseyed.

So, yeah, it doesn't come out and say "this bill will let us arrest and indefinitely detain civilians, including American civilians." You've got to do some detective work to figure that out, back to the Authorization for Use of Military Force - one of the US government's first responses to September 11, enacted exactly one week later and thus not exactly the result of sober second thought. The factor at issue is, as I understand it, here:

Section 2 - Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This isn't a case of "the US government is going to start herding civilians into internment camps" - things are rarely that black and white. No, this is just a door creaking open, a door that many people hoped had been bolted so securely it'd stay shut forever. When you take these two chunks of legal vomit together, what you get is a legal process for anyone to be tried and held in long-term detention by a military court so long as the President determines that they "planned, authorized, committed, or aided" the September 11 attacks. Now, if that had the force of law to it, if it had to be proven beyond a reasonable doubt that the detainee was involved in such a way, it'd be one thing.

But it isn't. As it's written, that determination lies with the President of the United States. Maybe you think Obama's a nice guy, he'd never do that... maybe you're right. But Obama's not going to be President forever. Come 2013 or 2017 there's going to be someone else behind the Resolute desk, someone with their own set of goals and priorities. Someone who might find it particularly advantageous to determine that a person or persons - say, maybe the leaders or media faces of some protest movement, or a gadfly journalist - is, through their actions, aiding the September 11 attacks; helping the terrorists win even years later.

Perhaps you think I'm off base; maybe you think that this sort of thing would never happen. It could be that you're right - I'd like to live in that sort of world. Nevertheless, the government likes to run by the letter of the law, and the letter of the law is on track to giving the President more power to detain than any President should rightfully have.

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