Tuesday, January 17, 2012

Misconceptions about NDAA

There has certainly been a lot of activist clamor about the latest National Defense Authorization Act for Fiscal Year 2012 (NDAA), suggesting that it some kind of gross new infringement on the rights of American citizens, but much of the criticism of NDAA is simply factually wrong. The single criticism that is true is that the FBI is now required to turn over terrorist suspects associated with al Qaeda to the military for detention. That's it. That's the only criticism that is new and true. All of the other recent criticism is either old or factually false. In particular, the NDAA as signed by President Obama does not authorize the military to engage in "domestic policing" or to "pick up" or even to "detain" American citizens.
Part of the confusion stems from the fact that the version of the bill passed by the House was in fact a little more draconian, but the bill differed in the Senate and was further modified in the conference committee, so that criticism of the original House bill is not necessarily application to the NDAA as signed into law by President Obama.
An easily way to tell if a critic is referring to the original House bill is if they refer to "section 1031." In the final bill from the conference committee that provision was renumbered to "1021." Most of the criticisms I have heard or read referred to 1031. In fact, I haven't heard or read a single criticism that referred to 1021.
Section 1021 has some rewording to respond to a request from President Obama, specifically to assure that the measure would not affect American citizens. Most notably, he had paragraph "(e)" added: "(e) AUTHORITIES.—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." Section 1031 of the Senate version of NDAA included that same language.
Technically, it has always been true that the President has the right to detain anybody anytime in the interests of national security, provided that he issue a "presidential finding" justifying such action, but that is not a new "authority" granted by NDAA this year.
So, paragraph (e) simply clarifies that no new authority is being granted for detention of terrorists. And the President clarified this as well in his signing statement.
Section 1021 is actually careful to limit itself to al Qaeda and the Taliban. It refers specifically only to "Covered Persons", including those involved with the 9/11 attacks, al Qaeda specifically, the Taliban specifically, and "associated forces" of those two specifically, but not to terrorist suspects overall. So, even if a person aided Hamas or Hezbollah or some other terrorist group or was a lone wolf terrorist or part of a home-grown domestic terrorist group, or a member of the Occupy movement or the Rotary Club, section 1021 does not apply to them.
Section 1022 of the final bill concerns the military custody issue. Nothing in the NDAA authorizes domestic policing by the military or authorizes the military to "pick up" American citizens. The whole "military detention" or "detain by the military" thing has been blown out of proportion. The relevant section is 1022 which is entitled "MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS" and the text makes clear that it only covers persons who are "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda". Subparagraph (b)(1) specifically states that "The requirement to detain a person in military custody under this section does not extend to citizens of the United States." And, of course, the section title makes quite clear that the military custody applies only to "FOREIGN" terrorists, and only "AL-QAEDA" terrorists at that.
How much more clear could the language be that the military is not being authorized to detain American citizens?
Again, I suspect that part of the problem is that activists and critics read the original House bill and not the final signed bill.


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