How the National Defense Authorization Act Conflicts with the Constitution

Written by Dennis Behreandt on Thursday, 22 December 2011. Posted in Politics, U.S.

jailThe National Defense Authorization Act that has now passed both the House and the Senate contains provisions authorizing the indefinite military detainment of anyone, even of U.S. citizens, anywhere, even within the borders of the United States, at any time as long as the President has declared them to be supporters of terrorism. What, exactly, might constitute "support" is largely undefined, opening up, and almost certainly guaranteeing, that at some point abuses and political persecution will occur.

Salon’s Glenn Greenwald concurs on this point. In a December 16 review of the measure’s detainment provisions, he noted: “It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who ‘substantially supports’ such groups and/or ‘associated forces.’ Those are extremely vague terms subject to wild and obvious levels of abuse….”

These provisions attack both the core of American political philosophy as expressed in the Declaration of Independence and the legal framework of government as established by the Constitution in several of its parts.

The list of fundamental political and legal doctrines and Constitutional provisions undermined by the detainment provisions of the current NDAA include:

  • The Declaration of Independence which says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men...." Needless to say, the detainee provisions authorizing the indefinite detention of those merely accused and not convicted of a crime conflict rather directly with Jefferson’s straightforward description of the natural right to liberty.
  • The preamble to the United States Constitution which says: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Indefinite military detainment without trial undermines the attempt of the Constitution to "establish Justice" as there, by definition, can be no justice in the indefinite detainment of those who have been accused but not convicted by a jury of their peers of a crime. Additionally, it damages "domestic Tranquility" by setting the government against the rights and freedoms of the people and it creates the conditions for the erasure of the "Blessings of Liberty."
  • Article I., Section 9 of the Constitution says: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The "Writ of Habeas Corpus" is used to protect the imprisoned from indefinite, secret detention. Because this writ exists and is protected by the U.S. Constitution, government cannot secretly and indefinitely hold a prisoner. According to the Cornell University Law School, "a writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful." The writ of Habeas corpus would appear to be suspended by the current NDAA legislation.
  • Article III., Section 2 of the Constitution says: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." By allowing the indefinite detention of citizens without trial, the current Act appears to circumvent the Constitutional requirement that those accused of treason be convicted of their crime and that conviction requires at least two witnesses or a confession in open court. The NDAA does this by not requiring court at all. An accusation alone will be sufficient to trigger indefinite incarceration.
  • The First Amendment to the Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." If nothing more than an accusation of support for terrorism is enough to justify indefinite military detention, will that not have a chilling effect on political speech? Further, what does "support for terrorism" mean, exactly? As the definition remains elastic, this opens the door for any future administration to declare its political opponents to be supporters of terrorism, and to thereby make speech supporting them illegal. Perhaps a Republican administration would do that to the Democrats. More likely, Democrats would proscribe the Tea Party movement and the alternative media, or Republicans would proscribe the Occupy Wall Street movement.
  • The Fourth Amendment to the Constitution states: “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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment has been systematically dismantled by both the Bush administration and the Obama administration. Americans are monitored and searched regularly, from pat downs at and scans at airports and NFL stadiums to sobriety checkpoints on roadways, to government use of tracking technology using mobile devices and GPS trackers surreptitiously affixed to victim’s cars. The provisions in the NDAA would seem to build on the trend. If a suspect can be indefinitely held without trial, what need is there for search warrants and probable cause?
  • The Fifth Amendment to the Constitution states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Obviously, the detainment provisions of the NDAA are completely at odds with the Fifth Amendment. The measure does not require the indictment of a grand jury and makes no pretense to due process of law before depriving a suspect of liberty.
  • The Sixth Amendment to the Constitution states: “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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” The Sixth Amendment is completely overthrown by the NDAA. It states, quite to the contrary of the Sixth Amendment, that those accused may be detained “under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” Clearly the implication is that the accused in such situations will likewise have the other rights guaranteed by this amendment stripped from them as well.

That a single measure offering such a thorough savaging of the Constitution can be produced and broadly supported by both Houses of the U.S. Congress, a body supposedly composed of men and women sworn to uphold the Constitution, is a singular and noteworthy “achievement.” From the point of respect for basic natural, human rights, this year’s National Defense Authorization Act is an historic low point.

Summarizing the general consensus that is forming about the dangers represented by the bill, writing for legal analysis site Justia.com, Joanne Mariner, director of Hunter College’s Human Rights Program, concluded, “nearly every provision in subtitle D [dealing with detainment] is objectionable from the standpoint of human rights and civil liberties.”


About the Author

Dennis Behreandt

Dennis Behreandt

Dennis Behreandt is Publisher and Editor-in-Chief of American Daily Herald.

Copyright © American Daily Herald.

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