Amendment Proposed to Counter Controversial Provisions of the NDAA

An amendment to the National Defense Authority Act (NDAA) has been introduced in congress.  The Smith-Amash proposal is sponsored by Reps. Justin Amash (R-MI) and Adam Smith (D-WA) and seeks to address the controversial provisions in the NDAA.

Already, two states (Virginia and Arizona) have passed bills “forbidding state cooperation with any attempts at federally sanctioned kidnapping under the NDAA.”  And, 12 cities and counties across the country have passed similar resolutions.  Additionally, in response to a lawsuit, a New York judge has ruled against the NDAA, blocking the law.

The NDAA is not a partisan piece of legislation and has caused divisions on the right.  Those opposed to it argue that provisions in the NDAA suspend due process.  Sections 1021 and 1022 are cited as giving the military too much power in regard to detaining an individual it believes “substantially support[s]” al Qaeda or “associated forces” until the “end of hostilities.”

Michael Maharrey, Tenth Amendment Center and Shahid Buttar, Bill of Rights Defense Committee, writing for The Hill opine:

“The NDAA even allows the military to ship off ‘covered persons’ (including US citizens) and hold them overseas indefinitely. ‘[The NDAA] enshrines extraordinary rendition into law,’ said Fairfax, California City Councilmember Larry Bragman (G). ‘We must resist. We must oppose. We must reverse.’

According to Rhode Island state Rep. and Marine Corps veteran Dan Gordon (R), “There is no definition of the term ‘belligerent’ and who gets to make that determination. That is a problem.”

The NDAA’s detention provisions place enormous power in the president’s hands. They empower our government to ignore constitutionally guaranteed First, Fourth, Fifth and Sixth Amendment rights. The authority to arbitrarily detain anyone on the basis of mere suspicion is the very definition of authoritarianism.

The NDAA’s apologists believe our government would exercise such extreme powers only against real terrorists. History reveals their confusion.

In 1942, President Franklin D. Roosevelt authorized a military detention program that kidnapped over 100,000 Japanese-Americans and Japanese citizens, forcing their relocation to internment camps. Our government also caged around 11,000 Americans of German ancestry and some 3,000 Italian-Americans, none of whom presented a security threat.

Nor are these abuses confined to the past. Roughly a quarter of those housed at Communication Management Units in the Midwest, for instance, are young white men from the Pacific Northwest convicted of terrorism for acts of environmentally-motivated vandalism.  The Animal Enterprise Terrorism Act even allows the government to treat undercover investigation of factory farms as an act of terror.”

In addition to prohibiting the government from detaining individuals in the U.S., it also prevents the use of the 2011 Authorization to Use Military Force in Afghanistan (AUMF) for the purpose of domestic military detention.

The Heritage Foundation, however, supports the NDAA and says that congress would be making a grave mistake by passing the Smith-Amash amendment.  According to Heritage, the amendment would limit a president’s options in dealing with terrorists. For instance, any al Qaeda member who is captured in the U.S. would be tried in federal court which, among other things, would prevent interrogation by the military for the purpose of intelligence.

According to the Heritage Foundation:

“Despite over-the-top claims to the contrary, last year’s National Defense Authorization Act (NDAA) does not impact the conditions under which a U.S. citizen may (or may not) be detained. In fact, section 1021 of the NDAA is explicit: The law regarding how U.S. citizens are handled, including the right to habeas corpus, is the same today as it was the day before it was passed.

Under the law of armed conflict or the law of war, a nation engaged in armed conflict has the legal authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities. A nation may detain captured enemy fighters—not as punishment but to keep them from returning to the battlefield. The law of war does not differentiate or discriminate between enemy combatants who are citizens or those who are non-citizens. History is replete with examples of citizens who became members of the opposing forces and were subject to detention when captured.”

It would be tantamount to “rewarding terrorists with greater rights for making it to the United States would actually incentivize them to come to our shores, or to recruit from within the United States, where they pose the greatest risk to the American people. Such a result is perverse,” the Heritage Foundation submits.  They go on to argue that the supposition that the NDAA allows for U.S. citizens to be prosecuted under the Military Commissions Act of 2009 is also inaccurate. The Heritage Foundation contends that the act applies solely to “alien unprivileged enemy belligerents. Aliens under the act means non-citizens, and thus the act does not allow for prosecution of U.S. citizens by military commissions.”

The Heritage Foundation, regarding habeas corpus:

“Not only is habeas corpus review available to both citizens and non-citizens detained in the U.S. pursuant to the law of war, but the Supreme Court has also extended the privilege to foreign detainees held at the U.S. naval station in Guantanamo Bay, Cuba. U.S. military and national security professionals have been litigating Guantanamo detainee habeas cases for several years. Section 1021 reaffirms the military’s legal position on holding Guantanamo detainees who pose a threat to the U.S. The Department of Justice is already citing section 1021 in its legal briefs to support the military’s detention of foreign terrorists held at Guantanamo and Afghanistan.”

The status of the amendment can be tracked here: H.R.4192 – Due Process and Military Detention Amendments Act (Smith-Amash amendment)  The National Defense Authorization Act can be viewed here: H.R. 4310: National Defense Authorization Act for Fiscal Year 2013.

-Candice Lanier