NDAA: The Text of the Law (part 3)
I have already written about how the NDAA does seriously violate your due process rights and replaces them with something that is an elaborate but empty façade of such rights. You can look at those articles here and here. In this one, I want to show the actual text of the bill itself so that you can see that, yes, it is as bad as we feared it would be, and no, assurances from Congressman like Tim Griffin do not mitigate the awfulness of this bill. Rather they are attempts to conceal its awfulness. The bill is a far more serious violation of your constitutional rights than even the most offensive provisions of Obamacare.
Almost all the trouble with the NDAA rests in section 1021 of that abominable act. Griffin and others have tried to use the fact that section 1022 does have an exemption for citizens of the United States as a reason that we should not be concerned about the act. This is misleading in the extreme. He and other defenders like Allen West go on and on about how section 1022 specifically exempts U.S. citizens in the United States from its provisions, but section 1021 has almost identical provisions and U.S. citizens are not exempted from it!
The protections for U.S. citizens in section 1022 do nothing to protect us from the nearly identical provisions in section 1021, from which we are not exempted. Imagine the level of duplicity involved in such a deception! “Look over here at section 1022 folks! See, we are not taking your rights away, we are just taking away the rights of those nasty old terrorists (or people we say are terrorists).” Meanwhile, section 1021 authorizes almost identical treatment for you and your neighbor.
Since it is not that long, I would like to present section 1021 in its entirety, with some commentary to bring home the real meaning of the legalese with things I’d like to focus on highlighted…
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF
THE UNITED STATES TO DETAIN COVERED PERSONS
PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) IN GENERAL.—Congress affirms that the authority of the
President to use all necessary and appropriate force pursuant to
the Authorization for Use of Military Force (Public Law 107–40;
50 U.S.C. 1541 note) includes the authority for the Armed Forces
of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
“Pending disposition under the law of war” means that you will be treated as a POW rather than a U.S. citizen. You would be handled under the same rules that we used on captured Nazis in WWII. Remember though, that under the laws of war uniformed troops captured in battle are eligible for much better treatment than are “spies” and “saboteurs” or “terrorist supporters” as most people would be accused of under this act.
Other things you don’t get: the right to face your accusers, protection against hearsay evidence, the right to your attorney, the burden of proof being placed on the government to prove you should be locked up, the ability to notify your kin what happened to you etc….
(b) COVERED PERSONS.—A covered person under this section
is any person as follows:
(1) A person who planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001,
or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported
al-Qaeda, the Taliban, or associated forces that are engaged
in hostilities against the United States or its coalition partners,
including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy
Most of you probably don’t think like an evil lawyer, therefore you read the above paragraph and think “well this law only applies to al-Queda or the Taliban.” But evil lawyers look at that and see loopholes a mile wide, and plenty of evil lawyers work for the system. What does "substantial" support for forces "associated" with al-Quaeda or the Taliban mean? How is it determined that this standard is met? The answer can only be that the President alone determines who is "substantially" supporting a group that he alone can determine is "associated" with "al-Quaeda or the Taliban".
Is blogging that America should get out of Afghanistan giving "substantial" support to the Taliban? Is passing on Taliban claims about massacres committed by American forces providing such support? Is organizing protests against the policies of "the Commander and Chief" a "belligerent act"? If the President says so, it could be under this act. That's the whole point. The executive branch alone gets to decide which citizens might be detained indefinitely.
There are no checks and balances. There is no judicial oversight. You don't get your own lawyer and it does not matter if the government makes a mistake. All the President has to do to make you go away is say that he decided you were giving substantial support to a group associated with the Taliban. He does not have to present any evidence to that effect. He does not need any evidence to that effect. These powers are dictatorial in nature.
The CIA and the U. S. military itself provided substantial support (as in weapons and information) to both Al-Quaeda and the Taliban back in the 1990s when the Soviet Union occupied Afghanistan. Since I was a member of the U.S. Military, I was a member of a group “associated” with the Taliban which gave “substantial support” to the Taliban. Thus, even under an honest literal reading of the language of the act, I am already eligible for indefinite detention without trial, as would be the military personnel arresting me.
But there is no reason to believe that administration officials will limit themselves to an honest reading of the act. The definition of “terrorism” is constantly being expanded by the government so that you don’t have to actually do violence, or even contemplate violence, to be labeled a terrorist. For example, the founder of the Liberty Mint only tried to mint coins that were made of gold and silver. This act alone got him imprisoned, his property confiscated, and his actions labeled “domestic terrorism" by a U.S. Attorney in the case.
I find it very probable that in the near future any citizens who vigorously but peacefully protest the misrule of the two-party cabal currently looting the nation will be classified as “potential domestic terrorists.” As such they will be subject to indefinite detention just for exercising their constitutional right to assemble and protest. Indeed even before the NDAA became law, the military used a predator drone to assist a local sheriff arrest an anti-government family for the crime of failing to report that some cows had wandered onto their 3,000 acre ranch.
The bottom line is that the definition is filled with loopholes, and even if it were not, there are no checks and no balances against even the most trumped up of charges being used against political opponents.
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a
person under the law of war as described in subsection (a) may
include the following:
(1) Detention under the law of war without trial until
the end of the hostilities authorized by the Authorization for
Use of Military Force.
When will the “end of hostilities” be for the war on “terror”? Will it be, as comedian Jon Stewart suggests, “when terror surrenders and is no longer available as a human emotion?” Terror is a tactic, not a government. You can’t defeat a tactic, you can only defeat enemies which use a tactic. The war on terror is a forever-war, being used to justify the de-facto imposition of martial law on the people of the United States. Until the trap is completely shut, they want to assure you that this is not being done, even as they do it right in front of you. Detention until the end of “hostilities” is the same as detention for life, unless there is a revolution.
(2) Trial under chapter 47A of title 10, United States
Code (as amended by the Military Commissions Act of 2009
(title XVIII of Public Law 111–84)).
You can be given a trial under this military law or…
(3) Transfer for trial by an alternative court or competent
tribunal having lawful jurisdiction.
If an actual trial, even a military one, using fixed rules in advance is too inconvenient for them, they can throw up some ad hoc “tribunal” to decide your fate. Needless to say, the rules we are used to being afforded as U.S. citizens will not apply. They can make up the rules as they go along.
(4) Transfer to the custody or control of the person’s country
of origin, any other foreign country, or any other foreign entity.
Notice that the language allows U.S. citizens to be sent to foreign nations for detention, and presumably “interrogation.” It’s not just foreigners being sent to their country of origin, but anyone can be sent to any country.
(d) CONSTRUCTION.—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.
Is this supposed to reassure us? Given that the President has already determined that he has the authority to conduct secret assassinations of American citizens without trial or outside review it is hard to see how any grant of authority could expand that which he currently exercises. Therefore the only affect a clause which says the legislation does not “limit or expand” that authority is to confirm that it is not limited in anyway by the legislation.
The law gives congressional cover to the current extra-constitutional actions and powers being exercised by this President against U.S. citizens. Perhaps the first citizen assassinated using this power was a bad person who deserved it, but what about the next one hundred such assassinations? Since there is no accountability, we just can’t know.
This provision was added at Obama’s insistence because he claimed he already had authority (from the Authorization for Use of Military Force) to do everything this bill says he can do.
(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
At first you might be tempted to think “we are off the hook, this is not to be construed to affect our constitutional rights!” Unfortunately, that is not what they are talking about here. Those are not the “laws or authorities” they have in mind. A quick look at the Bill of Rights, in particular amendments four through seven, shows practically everything in this section is violating those protections.
No, what they are talking about here, if it has any meaning at all other than fluff to pretend that the rest of the act is not doing what it is in fact doing, is to give a fig leaf of legal cover on prisoner treatment. This should be understood in the context of Obama’s threat to veto the original bill because he claimed he already had the authority to indefinitely detain people. He threatened to veto it, not because it gave him too much power, but rather because the original bill placed restrictions on him he did not wish to have.
This was placed in there to reassure Obama that what he had already done was not going to be held against him later. It is cover to the effect that they were only confirming he could do what he has already been doing so that he could not be sued for similar actions he took before the act was passed.
(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—The Secretary
of Defense shall regularly brief Congress regarding the application
of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’
for purposes of subsection (b)(2).
Ah, so there is some accountability. Congress gets briefed on who has been rounded up. If you are generous enough in your donations to these public servants, perhaps they will condescend to tell you if your vanished love one is on the list.
The more sheepish among us will accept Griffin’s misinformation about this bill because the alternative would obligate them to do something beyond pull a lever for candidates from one of the two DC controlled political clubs which have imposed monstrosities like this upon us. May God have mercy on our souls.