OBAMA'S UGLIEST CHILD. OR IS SHE?

The National Defense Authorization Act (NDAA): Change we don't really believe in that much. Or do we?

4.25.2013

If you were an alien who just arrived on earth and began to listen to "common knowledge" about the NDAA, the story goes something like this:

On December 31st, in the dark of night, President Barack Hussein Obama woke up in a sweat with his latest power grab in mind. He would deteriorate the very foundation of America and, by Executive Order without input from Congress, give himself the power to detain American citizens indefinitely with no due process to speak of. This power grab should cause great concern for "preppers" who prepare for various doomsday scenarios, as they may be considered "terrorists" under the new law, for storing more that 7 days worth of food.

In case you think I'm exaggerating, this type of talk occurs on the floor of the senate. And in web cartoons.

The uninformed dialogue surrounding the NDAA is pretty scary even if you instinctively know that it's completely made-up. The dialogue is meant to play on fear. And fear has certainly useful in the past for political gain. in this case, the truth is much more complicated. And while Americans tend not to deal with complicated issues quite as well, it's important to know a few fundamental truths about the NDAA (since it really could apply to anyone in the world.)

Kentucky Senator Rand Paul has garnered political momentum
with his opposition to Sections 1021/1022 of the 2012 NDAA

WHAT IS THE NDAA?

The NDAA is not an Executive Order, but a usually-mundane budgetary bill passed by Congress and signed by the President, every year (emphasis mine). This means: 1. my title for this Op-Ed is misleading (it's not only Obama's child. Congress negotiated it), and 2. when discussing the NDAA, the first appropriate question should be, what year?

Mind you, there has already been another NDAA signed for 2013 without the troublesome provisions of 2012. And, while the President did sign the 2012 version of the bill on New Year's eve, the newest version was signed on Jan. 2 of 2013. So much for that conspiracy.

(Below: Law Professor Jonathan Turley 

explains the 2012 NDAA's troublesome Sections)

Like all budgets, the2012 NDAA is largely a boring document that lays out the use of funds for the US Department of Defense. But it covers a wide-range of issues with many controversial sections. One example, is the Section of the measure that allows governors to request assistance of military reservists to act as first- responders in the event of a natural disaster or terrorist attack. Governors already have the right to call national guard to the scene, But for a terrorist attack? There's plenty of fertile ground for conspiracy theories there. But let's get to the real beef with the NDAA of 2012.

The fact is, you probably would not even have heard about the NDAA at all, if the Obama Administration hadn't come under attack for the introduction of a provision in 2012 that allows the military to detain people, including American citizens, for mere suspicion of ties to terrorism.

Former CNN Anchor Amber Lyon

is very active on the issue of the NDAA 

WHY DOES THE 2012 NDAA PISS PEOPLE OFF?

Specifically, under the 2012 NDAA's Section 1021/1022, President Obama agreed (with Congress) to give the military the power to arrest and hold people, including American citizens, indefinitely, without the writ of Habeas Corpus, although he promised, with that year's signing statement that his administration would not abuse that privilege.

The act has been challenged as a violation of Constitutional principles and the US Bill of Rights. It has been the subject of numerous court challenges; the most notable and successful of them, was brought by Chris Hedges of the new York Times. The case is hotly contested in Federal Appeals Court and is still due a significant ruling at the time of this publication.

The act has also garnered the ire of both the left and the right in American jurisprudence including the ACLU, Amnesty International, Human Rights First, Human Rights Watch, The Center for Constitutional Rights, The Cato Institute, Reason Magazine and the Council of American-Islamic Relations. It has been criticized in editorials published in The New York Times, Al-Jazeera and The Guardian.

Over 13 states have passed basically meaningless "NDAA nullification laws," including California, Michigan, Montana and Arizona, but federal law is still supreme and cannot be nullified by state law (at least not this way), under federalism. There is even a non-profit organization for people against the NDAA.

(Below: Cenk Uygur, a prominent progressive, trashes the 2012 NDAA)

WHAT'S THE OBAMA ADMINISTRATION'S POSITION ON THE 2012 NDAA PROVISIONS IN QUESTION? 

The administration certainly doesn't seem like they intend to oppress Americans.

The administration interpretation of the troublesome Sections of the 2012 law (1021/1022) rendered them nearly irrelevant. Under a policy directive released by the White House in February 2012 (2 months after the 2012 NDAA was signed) the military custody power can be waived in a wide variety of cases, including:

1. if the suspect's home country objects to military custody;
2. if the suspect is arrested for conduct inside the U.S.;
3. if the suspect is originally charged with a non-terrorism offense;
4. the military custody power does not apply where the suspect was originally arrested by local law enforcement
5. does not apply when a transfer to military custody could interfere with efforts to secure cooperation with suspect
6. does not apply when a military transfer would interfere with a joint trial.

Then there's that very thoughtful aforementioned signing statement President Obama wrote to accompany the NDAA in 2012. In that statement, The President explicitly states:

I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a nation. My administration will interpret Section 1021 in a manner that ensure that any detention it authorizes complies with the Constitution, the laws of war and all other applicable law.

BUT WAIT. THERE'S MORE...

In response to the controversial indefinite detention provision from 2012, Senator Dianne Feinstein (D-California) introduced an amendment in December 2012 that would have forbid the government from using military force to indefinitely detain Americans without trial under the new 2013 NDAA.

Although that provision, dubbed the "Feinstein Amendment," passed the Senate unanimously, a select panel of lawmakers stripped it from the final version of the act before it could clear Congress. In "exchange," Congress added a provision, Section 1029, that claims to ensure that "any person inside the United States" is allowed their Constitutional rights, including Habeas Corpus.

Let's not forget there's always Hamdi v. Rumsfeld. The Supreme Court has already ruled against the executive branch, holding that you cannot strip citizens of due process rights. but you can't tell that to some conspiracy theorists who are adamant in their belief that their government is out to "get" them.

So much for a power grab by President Obama.