Tuesday, December 6, 2011

The National Defense Authorization Act: Overhyped and Misinterpreted?

A person gave me a rather convincing argument as to why we should be skeptical of the claims made in the article I linked to in my last post, so now I'm starting to suspect that the NDAA isn't as dangerous as people are claiming it to be. In short, there seems to be no evidence that it will authorize the military to engage in law enforcement on US soil. For example, the article I linked to in my last post insinuates that the senate is redefining American soil as a "battleground," but using the search function on the PDF file of the actual bill reveals that neither the words "battleground" nor "battlefield" appear at all. Smoke up our butts, it seems.

It is in concern for the truth that I post this skeptical analysis. If I be guilty of passing along overhyped misinformation, then I shall redeem myself by offering a retraction and correction.

The person who persuaded me to be skeptical has given me permission to repost his writing, but he wishes to remain anonymous, so this is unattributed and has identifying information omitted. Any formatting changes or alterations in [brackets] are mine:


Though not a lawyer, as an [...], it is hard to avoid some knowledge of detainee operations. More importantly, there are some key tenants of the civilian-military relationship and long-standing traditions and aversions regarding things that the US military DOES NOT DO, that make this entire thing look a bit dubious.

In my understanding, a good part of the reason the provisions causing a kerfuffle are even in the bill is that no member of Congress wants Guantanamo detainees to be moved to their districts. That is also why Obama gets push back even from many Democrats when he starts talking about sending an al Qaeda operative to a federal court in their state or district. Of course, many have a more fundamental disagreement with treating al Qaeda operatives tried as criminals.

But what the argument is really about is closing Guantanamo is one of Obama's key campaign promises and transfering al Qaeda operatives to federal prisons and trying them as criminals in federal court has been one of his central policy positions, because he cannot close Guantanamo without doing so. These provisions we prevent him from doing so, which is why he has threatened a veto.

Though many Democrats wanted certain parts of this provision changed to support the Obama position, it was not important enough to make them oppose the bill as a whole (Congress sneaks all sort of provisions through that way, but at least this provision was related to the bill in question). Remember the 97-3 vote was on the entire bill, the annual authorization bill for the military. Although all budget bills have been slow of late (many parts of our government have now run on continuing resolutions for several years), the one the usually has one of the easier times is the Defense bill, because Congress does not want to be seen opposing it as a whole, and they all get pork out of it.

As for this specific issue, it looks like it may be being overplayed on the web. The fact that just about none of the articles I have seen actually quotes from the bill is a good indication of that. I just went through the bill--available here[:] http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf [...] and found the following:

The relevant subsections are under Title X, Subtitle D--Detainee Matters

1031 is basically affirming that detention until the end of the conflict or trial by military tribunal of Al Qaeda members and supporters, as well as others committing attacks against the United States is within Authorization for Use of Military Force because they are detained persons under the law of war.

1031.(d) - "Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." This means that Congress believes no new authorities are being granted to the military. The important part of that are the restrictions placed on the armed forces by the Posse Comitatus Act, which prohibit the Armed Forces from engaging in law enforcement within the United States. This is contrary to many claims you will find online. Posse Comitatus is not [mentioned] in the act, and I could find no other language suggesting that other parts of the act would overrule it. That is because the issue here is the holding and trying of those detained during an ongoing conflict with al Qaeda and its associates. This sections merely specifies that an authority that the president already has to use the military, must be exercised for a certain class of detainees, as defined in the following section. Interestingly, the bill does state that this can be delayed while law enforcement officials question the detainee (see 1032.(c)(2)(B) to 1032.(c)(2)(C)). This is a result of fall out from the underwear bomber, where the government took flak for the way that it handled the coordination between several different law enforcement and intelligence agencies and muddled the waters on what was said by the suspect under what authorities.

1032.(a)(2) states who is subject to this requirement. A person who is determined--(A) to be a member of, or part of al Qaeda or (B) to have participated in the planning ore execution of an attack against the US or coalition partners.

1032.(b)(1) specifically states that this requirement "does not extend to US citizens."

1033 - no DoD money may be used to transfer detainees to the US (exercising power of the purse--we will not let you pay for it, therefore you cannot do it). This goes back to the Obama administration wanting to move Guantanamo detainees to federal prisons.

1033.(e)(2)(A) - by definition, an individual detained at [Guantanamo] may not be a US citizen.

1034 - no DoD funds can be used to build new detention facilities in the US (power of the purse again--I do not want it in my district, so I will not allow you to build money to build it). This goes back to the Obama administration wanting to move Guantanamo detainees to federal prisons.

The Feinstein Amendment that keeps being mentioned added the word "abroad" after "captured." It would not have changed the status of the detention of US citizens, it only would have exempted designated individuals captured in the US from the requirement to be handed over to military detention and a military tribunal. This is because she and the Obama administration want to see al Qaeda operatives captured in [the] US tried as criminals, rather than as enemy combatants.

Some reports also state that the exemption to US citizens is taken away later in the bill, but I could not find it anywhere. Key terms that would have to be used such as "citizen," "detain," and "Authorization for Use of Military Force" simply are not present in such a context. If anyone finds anything different, I would be interested to know.

Hope that was helpful.


I think I learned my lesson in getting caught up in hype. From now on I'll cross-reference article claims with the language of the bills they talk about, unless they quote it otherwise. That's probably the most essential point: These articles don't back up their claims with concrete evidence from the legislation.

So while America is pretty bad off culturally, we're probably not that far gone yet. Keep your eye on what's going on, but I think we were mislead here, and I apologize for making such a mistake.

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