Dear Americans: This Law Makes It Possible To Arrest And Jail You Indefinitely Anytime

Terrorism may not be the worst threat to freedom that we face.
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The frightening implications of the National Defense Authorization Act (NDAA)

In 2014 alone, terrorism killed nearly 30,000 men, women and children. As horrible as this is, terrorism may not be the worst threat to freedom that we face. The real threat is how quickly we Americans have given our government carte blanche to fight the War on Terror. This has already caused far greater damage to our civil liberties than the terrorists themselves could ever hope to achieve.

In 2012, the U.S. Congress passed the National Defense Authorization Act (NDAA) with relatively little attention from the media―despite the freedoms it obliterated. The NDAA was enacted to empower the U.S. military to fight the war on terror. But buried in this law are two provisions (Sections 1021 and 1022) that authorize the indefinite military detention, without charge or trial, of any person labeled a “belligerent”―including an American citizen.

These NDAA provisions (which have been re-approved by Congress and signed by President Obama every year since 2012) override habeas corpus―the essence of our justice system. Habeas corpus is the vital legal procedure that prevents the government from detaining you indefinitely without showing just cause. When you challenge your detention by filing a writ of habeas corpus, you must be promptly brought before a judge or into court, where lawful grounds must be shown for your detention or you must be released.

Under Section 1021, however, anyone who has committed a “belligerent act,” can be detained indefinitely, without charges or trial, as a “suspected terrorist.” This is a direct violation of the U.S. Constitution and our Bill or Rights. In The Federalist No. 84, Alexander Hamilton stressed the importance of the writ of habeas corpus to protect against “the favorite and most formidable instruments of tyranny.”

Only 13 senators voted against the NDAA in 2012, including Bernie Sanders (I-VT), Al Franken (D-Minn) and Rand Paul (I-KY).

According to Dan Johnson, the 23-year-old founder of People Against the NDAA (PANDA), our current presidential candidates do not seem concerned about it either. “Hillary Clinton has been entirely silent about it, while Donald Trump has come dangerously close to endorsing it, approving of military trials for American citizens at Guantanamo Bay just this month,” Johnson notes.

A protester questions the NDAA’s place in American law (source)
A protester questions the NDAA’s place in American law (source)

I asked Johnson to explain how the NDAA was passed and what implications it holds for a free America.

Steve Mariotti: How did you learn about this little-known law, the NDAA?

Dan Johnson: Five years ago, I came across a video, 61 senators betrayed you today. A curious political science major, I clicked to find Senator Lindsey Graham on the Senate floor vehemently promoting the idea that “enemy combatants” should not be entitled to due process.

Senator Graham was speaking in support of the 2012 National Defense Authorization Act (NDAA), which was signed into law by President Obama on New Year’s Eve in 2011. The NDAA authorizes the President to order the U.S. military to detain anyone in the United States without charges or a trial, until the war on terror ends. During that detention, the detainee is classified as an enemy spy, a belligerent. Even if you are an American citizen, you could be tried in military court, transferred to another country, or even executed... all without charges or a trial.

For these reasons, the NDAA is being opposed by groups that span the political spectrum―from the ACLU to Rush Limbaugh. It has been the subject of a lawsuit in Hedges v. Obama and is formally banned in several places.

Senator Lindsay Graham promoting the NDAA on the Senate floor.

SM: What is so scary about the NDAA?

DJ: The NDAA’s detention section harkens back to one of the worst civil rights violations in U.S. history: when the U.S. government detained over 120,000 Japanese-Americans, and a few thousand German- and Italian- Americans, without charge or trial. This abuse was allowed only because of Executive Order 9066, signed into law by President Roosevelt in post-Pearl Harbor 1942. The order authorized the Secretary of War and his commanders to re-designate parts of the United States as military battlefields.

Men, women and children were incarcerated in the U.S. due to their ethnic heritage during WWII (Source)
Men, women and children were incarcerated in the U.S. due to their ethnic heritage during WWII (Source)

The NDAA also applies the laws of war on American soil―except under this law, everyone, whether an American citizen or not, is robbed of their rights. Under Section 1021, anyone who has committed a belligerent act, which even the government could not define when questioned in court, can be detained indefinitely, without charges or trial, as a “suspected terrorist.”

In essence, the 2012 NDAA brought the war on terror home. It is the authority used to kill American citizens abroad and justify the abuses at Guantanamo Bay. And now it applies on American soil.

SM: Who are the “covered persons” in the 2012 NDAA?

DJ: The 2012 NDAA’s detention provisions apply to anyone, anywhere. But who is most likely to have the NDAA used against them? It depends on how you define the word terrorist.

The Department of Homeland Security said that individuals or organizations “reverent of individual liberty” and “suspicious of centralized federal authority” pose a threat. The state of Georgia calls publishing “public records” terrorism. The FBI added the director of an anti-fracking film to the terror watchlist; and tells business owners to look for terrorists via “strange odors,” “ordering a specific hotel room,” and demanding “identity ‘privacy’ in dozens of their documents.

The government won’t define “terrorist” in order to keep their options flexible. So it means whatever they want it to mean, at any point. And under the 2012 NDAA, the term “terrorist” can be applied to whomever they want to apply it to, at any point.

SM: Does that really mean American citizens could be treated like POWs (prisoners of war) by the military?

DJ: If only we were so lucky. It’s actually worse than that.

The Geneva Conventions created in 1949 were a set of treaties that established international law standards for the humanitarian treatment of people involved in war. The Geneva Conventions split people on a battlefield into two categories: combatants (soldiers) and non-combatants (civilians). Under the Geneva Conventions, POWs are captured combatants protected by international law from torture, starvation and the denial of medical care.

After 9-11, the U.S. government wanted to get around the Geneva Convention’s ban on torture of combatants so it created a new category: unlawful enemy combatant, i.e. a “terrorist.” This is a person who took up arms on a battlefield but is not entitled to POW protections. As Department of Defense General Counsel William Haynes wrote in a letter to the Council on Foreign Relations, regarding Guantanamo Bay: “All of the detainees are unlawful combatants and thus do not as a matter of law receive the protections of the Third Geneva Convention.”

In 2009, Congress passed the second Military Commissions Act, which quietly replaced unlawful enemy combatant with unprivileged enemy belligerent. Both noncombatants and civilians could then be categorized as “enemy belligerents,” and denied their Geneva Conventions rights.

When the United States executed American citizen Anwar-al-Awlaki and his son in Yemen via drone strike on September 30, 2011, the rationale for the attack was that al-Awlaki had been labeled “an unprivileged enemy belligerent.” Under the 2012 NDAA, any American citizen can now be labeled the same.

A 2013 protest of the NDAA and detention of prisoners in Guantanamo, led by Amnesty International (source)
A 2013 protest of the NDAA and detention of prisoners in Guantanamo, led by Amnesty International (source)

SM: Who is making the decision to implement this?

DJ: The 2012 NDAA grants one person in particular, the president of the United States, the authority to determine who is and is not considered a “suspected terrorist.” But he can designate that authority to anyone he would like, and we would not know because it would be considered a State Secret.

It was introduced in the Senate by Senator Carl Levin (D-MI) and a concurrent version was introduced in the House by Rep. Buck McKeon (R-CA). It was bipartisan legislation, passing 93-7 in the Senate and 283-136 in the House.

A previous champion of the fight against the NDAA was Rep. Justin Amash, but recently, no representative in either house has introduced legislation to curb the NDAA. It is the realization of one of my greatest fears: once Americans forget about this legislation, that’s when it will be used en masse.

SM: Are American civilians currently being detained under NDAA?

DJ: The scary thing is that we do not actually know. Why?

  • The government does not need a warrant to detain you.
  • The government does not have to produce any record of your detention.
  • The military, unlike the police, does not need to take record of your arrest.

Congress tried and failed to pass a provision that would have required the Secretary of Defense to submit a list of detainees under the NDAA to Congress every year.

In Hedges v. Obama, a case brought by journalists and activists who believed the NDAA’s detention provisions could be used to detain them, the government refused to confirm or deny that these provisions were in play right now. Judge Katherine Forrest agreed that the NDAA “does not pass muster under the First Amendment itself” and issued a permanent injunction preventing the enforcement of the NDAA.

In response, the Federal government immediately applied for an emergency stay to delay the case This very fact hints that the government is probably holding American civilians under the NDAA. We just don’t know where.

SM: When will this bill expire?

DJ: When will the war on terror end? That’s when the NDAA powers expire. America entered this war with the Authorization for Use of Military Force in 2001, which authorized “necessary and appropriate force” to go after Al-Qaeda and the Taliban, and to go to war in Afghanistan. It is also the same bill quoted by the 2012 NDAA.

So when the war on terror ends, that’s when these extraordinary military powers will end. And in all probability, the answer is never.

If you would like to help stop the NDAA, visit PANDA’s Take Back Your Town page here.

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