The National Defense Authorization Act and the Death of Due Process

In 2013 I wrote a Pro vs Con paper on the National Defense Authorization Act. Sections 1021 and 1022 give our government the right to bypass due process for anyone in our country (including American Citizens) My only regret is that I had to spend part of my paper detailing why people advocated for the N.D.A.A.

Ben Honeycutt

Derek Glasgow

Politics 310

16 November 2013

A Matter of Interpretation

            It was the decision felt around the world. In 1944, the United States Supreme Court upheld the rights of the federal government to detain Japanese individuals solely on their race, forever reshaping the arresting power of the federal government ("Korematsu v. United States"). Despite an official apology and condemnation of the decision, the Supreme Court has not reversed this foreboding decision. In fact, the government’s arresting power only continues to rise. The 2012 National Defense Authorization Act or N.D.A.A, gave the federal government the ability to detain any American citizen suspected of being involved “with terrorist activities” (Ackerman 2011).  In consideration of this evidence, it is proposed that the U.S. Congress must pass legislation removing sections 1021 and 1022 of the National Defense Authorization Act, which grant the government the right to arrest those involved “associated [terrorist] forces” without trial. This paper will stand in affirmation of this resolution because the sections’ failure to define what “associated forces” are, the sections’ violation of multiple amendments, and because the sections allow the federal government to detain citizens without a trial (Pace 2011).

            Overview:

            On December 31st, 2011, President Obama signed the National Defense Authorization Act despite admitting he possessed “serious reservations” about the language inside the bill (Pace 2011). Hoisting a price tag of $662 Billion, Congress wrote the N.D.A.A as an extension of the Patriot Act (Pace 2011). Despite the Obama Administration’s assurance that the act merely carried over policies carved out in the 2001 Patriot Act, there are a few critical alterations to consider. First, the N.D.A.A grants the President the right to detain individuals “without trial until the end of the hostilities.” The Obama Administration argued that this power was already latently given to the president through the 2001 Patriot Act (Obama 2011). This claim, while substantiated in the court cases over indefinite detention since that time, the N.D.A.A is the first instance where this power is expressed in writing (Greenwald 2011).

            Sections 1021 and 1022 of the N.D.A.A. broaden the scope of the War on Terror.  The original Patriot Act constrained the War to those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (107th Congress 2011).  The N.D.A.A. offers a tremendous expansion of the United States’ combatants in the War on Terror. This language has now been altered to allow the “Armed Forces of the United States to detain covered persons” (Greenwald 2011). Covered persons, as defined by the N.D.A.A., are "person(s) who [were] 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” (Pace 2012). The law does not provide a definition for what is considered “an associated force,” giving the government the power to detain any person(s) related to a terrorist organization that threatens the safety of the United States. The law gives legal justification to the government’s widening of the war on terror. The United States’ targeting of the Al-Shabab terrorist group in Pakistan would have once been considered illegal on an international scale, as Al-Shabab was not one of the combatants listed in the original Patriot Act (107th Congress 2011). The N.D.A.A. gives the government the flexibility to adapt to the terrorist threats abroad and indefinitely arrest those involved without fear of legal reprisals.

            The language of sections 1021 and 1022 of the N.D.A.A provides the president the power to arrest American citizens without a trial. The language of both sections 1021 and 1022 of the N.D.A.A utilize broad terminologies that do not exclude American Citizens from being “covered persons” (Greenwald 2011). Analyzing the sections individually, Section 1021 features a disclaimer that protects American citizens caught on American soil, but it gives the federal government the full rights to capture and detain American citizens abroad (Greenwald 2011). Turning to Section 1022 of the N.D.A.A., this section exempts American citizens from being required to remain in detention for the duration of the war on terror, but it does not prevent the federal government from detaining an American citizen for an indefinite period of time (Greenwald 2011).

            Pro:

            This incredible expansion of federal government power outlined in Sections 1021 and 1022 is an egregious breach of the liberties granted to American Citizens. The fifth amendment of the constitution was adopted to protect individuals from abuses of government authority. The fourteenth amendment, assembled during the reconstruction era, was written to provide every U.S. citizen equal protection of the laws. Both the fifth and fourteenth amendments extend the right of “due process” to all American citizens, “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . .”“ “Due process of law” guarantees an American citizen’s just treatment through this nation’s judicial system, with “just treatment” being a citizen’s right to an attorney, a citizen’s innocence until being proven guilty, and a wide array of applicable rights found within the constitution. Moving the focus to the N.D.A.A., sections 1021 and 1022 violate the due process outlined in the fifth and fourteenth amendments, Spencer Ackerman, a reporter from Wired, provides analysis, “Someone the government says is “a member of, or part of, al-Qaida or an associated force” can be held in military custody “without trial until the end of the hostilities authorized by the Authorization for Use of Military Force”’ (Ackerman 2011). The government’s newfound ability to hold an American citizen in custody without a trial violates the idea of due process. A citizen can now be arrested for being accused of being associated with terrorist organization without an opportunity to claim their innocence. Even President Obama was critical of these sections in the legislation, communication his belief that section 1021 “breaks no new ground and is unnecessary”, and that 1022 is “ill-conceived and will do nothing to improve the security of the United States” (Obama 2011). Weighing the hoard of negative criticism of these sections of the legislation, it is clear they must be overturned

            The Fifth Amendment is where the idea of an American citizen being “innocent until proven guilty” is found inside of the constitution. Under the N.D.A.A., a person merely has to be accused of being associated with a terrorist organization to be arrested and detained by the government. This person would not have the right to a trial, as the N.D.A.A does not grant American citizens the right to an attorney, and the law never exempts individuals from these sections. The law effectively flips the standard of being “innocent until proven guilty” into being “guilty until proven innocent.”

            Section 1021 of the N.D.A.A., commits a unique violation of the fourteenth amendment. This section features a footnote that exempts American citizens from being considered among the section, however, it curiously does not include that exemption for Americans traveling abroad. This oversight was likely not an accident, as this bill was written shortly after the United States’ targeted killing of American citizen Anwar al-Awlaki. (Shane 2010) Al-Awlaki born in 2010, was known to encourage and participate in terrorist attacks against the United States, and was connected to both the Fort Hood shooting and the attempted underwear bombing (Shane 2010). Though he was born in New Mexico, Awlaki spent the last years of his life in remote areas of Yemen. Theoretically, section 1021 would have given the government the right to capture and arrest Awlaki in Yemen without giving him due process. However, the fourteenth amendment makes no delineation between U.S. citizens in the country or those traveling abroad.  From that fact alone, section 1021 stands in violation of the fourteenth amendment.  

            Section 1022 also infringes upon the sixth amendment to the constitution. The sixth amendment outlines that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed […], to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” Section 1022 allows the government to detain “covered persons” until the War on Terror has ended. Considering that the detention listed inside the bill is rather “indefinite” and the fact that there is no timetable for a withdrawal from the War on Terror, accused individuals could be held without trial for the entirety of their lives.  The “indefinite” nature of the N.D.A.A. brings forth the actuality that the law removes constitutionally enforced promise that every American citizen holds the right to a “speedy” trial.

            The vagueness that exists in sections 1021 and 1022 is a pivotal flaw to the legislation. The law does not define what an “associated force” is, but reinforces its right to detain anyone considered among “associated forces” (Dreazen 2011). This vagueness gives the federal government tremendous flexibility for what constitutes a “terrorist” or a “terrorist group” (Dreazen 2011). Though it may feel as though this is becoming a laundry list of constitutional violations, it is undeniable that the law also infringes upon the fourth amendment of the constitution. This amendment declares that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” As chronicled in the 4th amendment, the arrest of every U.S. citizen requires probable cause. The vagueness of sections 1021 and 1022 of the N.D.A.A. could allow the government to arrest those without probable cause, violating a key facet of the fourth amendment.

            The controversy surrounding the N.D.A.A. has caused individuals from around the country to call for the legislation to be appealed or amended. Christopher Hedges, a former columnist for the New York Times, led a collection of individuals in a lawsuit filed against the Obama Administration (Van Voris 2012). U.S. District Judge Katherine Forrest ruled the N.D.A.A to be “unconstitutionally vague” and argued that the law was in violation of the rights guaranteed by the “first, fifth and 14th Amendments to the U.S. Constitution” (Van Voris 2012). Despite the fact that the ruling permanently blocked the enforcement of the law, the U.S. Department of Justice received an emergency stay that froze Forrest’s ruling (Savage 2012). In 2013, the second circuit of appeals overturned Forrest’s ruling on a 3-0 vote, arguing that Hedges lacked the legal standing to bring the challenge against the law and that the law said “nothing about arresting American citizens” (Sledge 2013). Carl Mayer, an attorney for the plaintiffs, was appalled by the ruling, arguing “The Second Circuit panel did not distinguish itself in upholding civil rights in America, […]I think the decision is imminently appealable because it reverses a very solid and comprehensive lower court opinion, and frankly I think it's time for the Obama administration to stop supporting these statues like the indefinite detention law." Mayer’s outrage demonstrates the challenge lying in front of those against the N.D.A.A.. While it is true the law does not specifically target American citizens, it also does not protect them. On February 19th, 2013, the Supreme Court refused to reconsider the decision of the second circuit (Scalia 2013). With the decision of the second circuit panel and the Supreme Court, it appears that sections 1021 and 1022 will become a fixture of American policy.

            Con:

            Upon entering office, one of the key tenets to the Obama platform was the promise to close Guantanamo Bay (Jakes Jordan 2008). An essential element to this promise was to move the trials of terrorists from Guantanamo to American soil (Jakes Jordan 2008). In 2009, the United States held the first such trial with the case against Ahmed Ghailani, a terrorist involved with the 1998 U.S. Embassy bombings. Ghailani “was acquitted of 284 counts, including all 224 murder counts” (Kornblut 2010). This acquittal was viewed a major loss for the Obama Administration, and demonstrated the issues with trying terrorists in a civilian setting (Kornblut 2010). The ruling also veered close to putting the Obama Administration in an adverse legal bind. Had Ghailani been found innocent, the government would have likely had to keep Ghailani detained in spite of the decision (Kornblut 2010). The National Defense Authorization Act allows the government to detain suspected terrorists without the inevitable obstacles associated with a civilian trial.

            The risk of American citizens being wrongfully detained through the N.D.A.A. may also be overstated. In 2004, The Supreme Court oversaw Hamdi  v. Rumsfeld, a case which was centered around an American citizen’s three year detention for being considered an “enemy combatant”.  Yasar Esam Hamdi was held for three years without charge, and had no access to an attorney at that time. The U.S. Supreme Court ruled that U.S. Citizens have the right to challenge the legality of their detention through federal courts and still hold the right to due process (Griffin 2011). While the language in the N.D.A.A does not explicitly reaffirm these rights for American citizens, representative Tim Griffin argues that the law merely codifies the Supreme Court’s 2004 ruling (Griffin 2011). The representative goes on to suggest that Section 1022 has been “misinterpreted” by those critical of the law (Griffin 2011). The revelations uncovered by the Hamdi v. Rumsfeld decision show that Americans have a legal justification to challenge their detention. Griffin’s analysis should at the very least soothe fears that the government is setting out to capture American Citizens.

            Analysts argue that the N.D.A.A is also integral to the conditions of the War on Terror. It is salient to point out that the United States never declared war on Afghanistan, but on the enemy combatants inside the country. Sections 1021 and 1022 of the N.D.A.A. is being justified to continue the fight of the War on Terror (Griffin 2011). The bill gives U.S. forces the right to detain terrorists wherever they may be hiding, and could give the U.S. much needed security from the threats spread throughout the globe.  

            The reported vagueness of the N.D.A.A., has come under question by those who support the legislation. Tim Griffin points out that “the secretary of defense [has] to regularly brief Congress on which terrorist groups constitute “associated forces” to further ensure rigorous and routine oversight by our elected officials” (Griffin 2011). This requirement inside the N.D.A.A. aims to establish regular accountability that no “associated force” is wrongly accused of carrying the “terrorist” label.

            Due of the controversy of the N.D.A.A., President Obama himself has released a statement calming the fears of those throughout the nation. Upon singing the bill, the President said he wanted to clarify that his “Administration will not authorize the indefinite military detention without trial of American citizens. Indeed […], [my] Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law” (Obama 2011). The widespread debate that ensued over the powers of the bill might need to be put to rest due to the President’s statement. In both of the controversial sections of the law, the president promised to interpret their meaning in a way that did not infringe on the constitution. Since the president is the only individual who can access the powers detailed inside the law, his assurance that his administration will refuse to prosecute American citizens should assuage any fear over the effects of sections 1021 and 1022.

           
Decision:

            After conducting a thorough assessment of the issues detailed inside the paper, it is clear that the pro presents a more persuasive case on why American Citizens should be exempt from Sections 1021 and 1022 of the legislation. The pro side of the debate has a more compelling case due to the power the government now has to detain American citizens. Representative Tim Griffin underlines a strong con argument that the Hamdi v. Rumsfeld case gives American citizens the right to due process and a case through federal courts (Griffin 2011). However, the subsequent 2013 decision by Supreme Court to not review second circuit’s decision on Hedges v. Obama suggests that the court is in support of the controversial aspects of the law. Obama’s own statement of the bill also suggests that the bill could be interpreted to allow the government to arrest American citizens without a trial (Obama 2011). Despite Obama’s claims that he is against sections 1021 and 1022, he did not encourage congress to make any changes to the 2013 version of the law. While Obama may not utilize the NDAA for autocratic purposes, there is no guarantee that the next president will share the same worldview. Additionally, President Obama’s lack of accountability over the legislation is also a point of concern. While Congress must be approached about what defines an “associated force”, who is verifying that an American has not been wrongly accused of being involved with an “associated force?” The con has failed to provide a premise for why citizens should be considered among the “covered persons” outlined in sections 1021 and 1022 of the NDAA and should be excluded from due process. This failure by the con clinches my decision to support the pro side of the debate.

Conclusion:

            Korematsu v. U.S. kindled sparked a movement in U.S. government policy that has continued with the passing of the N.D.A.A. The failure to exempt Americans from Sections 1021 and 1022 of the law should raise alarm in people throughout the nation. In order to maintain the constitutional rights of those inside the country, the U.S. must pass a law banning sections 1021 and 1022 from the N.D.A.A.

References

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