NDAA not as bad as media portrays

For the past several weeks, one of the most trending topics on Twitter was the National Defense Authorization Act, or NDAA. While casually perusing my Twitter feed, I noticed several panicked tweets discussing how Obama acquiesced to military brass and authorized the indefinite detention of American citizens without trial. After glancing at some major newspapers, I noticed the same portents. The media and Twitter would have us believe that the Obama Administration has become a veritable “Big Brother,” preparing to send secret police into our homes to arrest us at a moment’s notice and suspend our due process rights. Indeed, ACLU executive director Anthony Romero recently said in an agency press release that “[President Obama] will forever be known as the president who signed indefinite detention without charge or trial into law.” Rhetoric like this exaggerates the threat of the NDAA and mischaracterizes Obama. While the language contained in the NDAA is cause for concern, the apocalyptic narrative told by major media outlets is misleading. In fact, the new NDAA creates a fantastic opportunity to actually preserve civil liberties for American citizens.

The NDAA is nothing new. The NDAA is a Federal law that has been enacted every year for the past 49 years to specify the budget and expenditures of the U.S. Department of Defense. More recently, the NDAA has been used to specify how the Department of Defense will engage in counterterrorism activities. This year, Congress sought to ensure that the treatment of suspected terrorists remained under the purview of the laws of war, rather than criminal law. Congressman and military leaders included two new sections in the 2012 NDAA that authorized the Armed Forces to engage with terrorists as enemy combatants, rather than criminals.

The first section ostensibly allows the military to indefinitely detain, without trial, any “belligerent persons” who “aids al-Qaeda, the Taliban, or associated forces that are engaged in hostilities with the United States.” Congress is trying to ensure that the War on Terror is under the purview of the military, not the criminal justice system. In reality, what this first section might do is grant the Executive Branch explicit authority to allow the military to detain enemy combatants and try them in military tribunals rather than in civilian courts. The Senate rejected an amendment to this section that would have exempted American citizens. Okay, so this seems a little scary. However, the second section contradicts the first section, and convolutes what the military is actually authorized to do.

The second new section states that “[this Act] shall not be construed to affect existing law or authorities relating to the detention of the United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” This clause restricts the scope of the new law. Additionally, the reach of the NDAA is restrained by how the courts currently interpret laws dealing with the detainment and prosecution of enemy combatants. The relevant “existing law” the second section refers to is the Authorization for the Use of Military Force, or AUMF, passed in the weeks following September 11, 2001 (this is the act that gives the President authority to use the military to carry out the War on Terror). This means that the new law is subject to current interpretations of the AUMF. In other words, the NDAA can’t actually do anything new without profound and implausible changes to settled understanding of the AUMF.

This is significant for a couple of reasons. First, the courts have not interpreted the AUMF in a way that would allow indefinite detention without trial. Indeed, the Supreme Court has already answered the question of whether an American citizen labeled as an unlawful enemy combatant may be indefinitely detained without any form of due process. In 2004, the 8-1 Supreme Court decision in Hamdi v. Rumsfeld ruled that “due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.” The Court went on to argue that a citizen’s private interest demands that due process of law be preserved even when the citizen is an enemy combatant of the United States.

For any President seeking to lock away American citizens and throw away the key, the presumption of due process will be tremendously difficult to overcome. The near unanimity of the decision demonstrates that the Court is hardly glib about due process rights. Decades of Supreme Court decisions have articulated a powerful precedent in favor of preserving due process rights for U.S. citizens. The presumption of due process rests so heavily in favor of citizens’ interests that it’s hard to imagine the indefinite detention of a US citizen without a trial.

If anything, the NDAA provides an opportunity to reaffirm the legal system’s commitment to due process. Should any President attempt to detain an American citizen without trial, their attorney would demand a writ of habeas corpus, citing Hamdi as precedent. The courts would almost certainly respond by granting due process rights, further entrenching the presumption of due process in our legal system.

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The NDAA is not as scary as people make it sound. Under the current understanding of the law, it cannot be used to indefinitely detain an American citizen without trial. If a future President tries to exercise this tenuously established authority, then the Courts will prevent him or her from doing so.