Why and What You Should Know About the NDAA

01-04-2012

On New Year’s Eve President Obama, despite serious reservations, signed into law a bill that has generated much controversy and charged rhetoric over the last few weeks. That annual bill, the National Defense Authorization Act, specifies the budget and expenditures for the Department of Defense. But the 2012 NDAA is not restricted to the technicalities of the budget. Embedded within the act, as carefully broken down by Glenn Greenwald in an article for Salon, are several sections enabling indefinite military detention without trial and expanding the scope of the War on Terror even further.

The section in question, “Subtitle D- Counterterrorism,” codifies the following:

1. The indefinite detention, without trial, by the military and under military rather than civilian jurisdiction, of certain classes of persons;
2. The persons covered by the Bill include not only persons who are part of terrorist groups, but also those who offer substantial support to terrorist groups, a vague standard that in recent cases has been applied to lawyers and human rights activists;
3. U.S. Citizens are, in certain circumstances, also subject to indefinite detention by the military;
4. The use of funds to build a facility in the US for Guantánamo detainees and the transferring of those detainees to the US for any reason is prohibited, rendering the closing of Gitmo impossible.

Some argue that the NDAA merely codifies detention authority that the administration and the military have already claimed, both in their actions and in the 2001 Authorization for Use of Military Force. This argument does hold some weight, particularly because the NDAA’s purposeful ambiguity, as well as Obama’s stated concern about “certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” makes it difficult to determine exactly how the provisions will be used.

But even if it is the case that the NDAA does not constitute a major change in policy (which Greenwald and others dispute), the fact that the NDAA’s provisions put the legislative weight of Congress behind such policy is no small tragedy. From the ACLU to Human Rights Watch to Ron Paul (who called one of its earlier versions “a slip into tyranny”), the NDAA has been denounced for its frightening disregard for the rule of law and the US Constitution. ACLU’s executive director, Anthony D. Romero, had particularly strong words about the bill’s signing:

President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law…We are incredibly disappointed that President Obama signed this new bill into law even though his administration has already claimed overly broad detention authority in court. Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today.

Sadly, what is clear is that the NDAA further entrenches what was already unjust and legally questionable policy. The fact that the bill passed both the Senate and the House, as well as avoided a presidential veto, is unfortunately not a testament to its validity or harmlessness, but to just how much compromising of constitutional values we’ve let ourselves swallow.

The NDAA is the latest manifestation of the crisis mentality that has gripped Washington since the so-called War on Terror began. It seems that we are living in a chronic state of emergency, in which a policy as un-American as indefinite detention is justified simply by claiming that it is keeping us safe. As Elaine Scarry writes in her recent book Thinking in an Emergency, there is an unspoken presumption in times of emergency that either one can think or one can act. We bypass deliberation exactly when it becomes most necessary. Arendt agreed, believing that in exceptional times deliberation and judgment must come to the forefront in all political matters. For her, the faculty of judgment is not the ability to know right and wrong abstractly, but the ability to tell right from wrong, in a given situation.

In the case of NDAA, Congress has washed its hands of its responsibility to think, to determine what is right and wrong in this War of Terror. Instead Congress and the President have handed off authority to the military to use as it sees fit, taking refuge in the bill’s ambiguous phrasing to avoid having to take a real stand. In their unwillingness to say, in law, that indefinite detention is wrong, our politicians have made what was an implicit policy an explicit statement: this is what America does.

You can read Glenn Greenwald’s article here, the ACLU’s statement here, and Obama’s written statement on the detention provisions here.

-Anna Hadfield