The Dangerous Defense Bill Heading Toward Obama’s Desk


Posted on December 16th, 2011 by Vina Tran
 3 comments  

From Columbia Law Professor and Nation columnist Patricia Williams, cross posted from the January 2, 2012 issue of the Nation and Williams’ own blog, Madlawprofessor:

You know these are interesting times when Glenn Beck, Dianne Feinstein, Rand Paul and the ACLU all stand on the same side of an issue. The issue in question is Subtitle D of the National Defense Authorization Act (NDAA), particularly Sections 1031–1033, being discussed by the House and Senate as I write and headed to the president’s desk any day now. These hastily added, under-the-radar provisions, co-sponsored by Senators John McCain and Carl Levin, would allow for the indefinite military detention of any person alleged to be a member of Al Qaeda, the Taliban or “associated forces.” The provisions also apply to any person who supports or aids “belligerent” acts against the United States, whether the person is apprehended beyond our borders or on domestic soil.

For noncitizens, such detention would be mandatory. And while news agencies from Reuters to the Huffington Post have recently reported that American citizens would be “exempt” from this requirement, the truth is more complicated. Military detention would still be the default, even for citizens, but at the discretion of the president, it could be waived in favor of handing over the case to domestic law enforcement. Under this law, if the Defense Department thinks you’re a terrorist, there would be no presumption of innocence; you would be presumed a detainee of the military unless the executive decides otherwise. Without such a waiver, again, even if you’re a citizen, you will never hear words like “alleged” or “suspected.” You will be an “unprivileged enemy belligerent,” with limited rights to appeal that status, no rights to due process, or to a jury, or to a speedy trial guided by the rules of evidence.

According to the “law of war” invoked by these sections of the NDAA, a person in military custody can be held indefinitely, without charge and without access to civilian courts. Perhaps most significant, with the suspension of constitutional provisions for due process, there would be no Fifth Amendment right to remain silent. During the Congressional debate over the NDAA, proponents like Senators Saxby Chambliss and Lindsey Graham argued that when we capture someone who is deemed an enemy, we must start with the presumption that “the goal is to gather intelligence” and “prosecution is a secondary concern.” In numbingly infantile terms, they declared that “the meanest, nastiest killers in the world” should be questioned for “as long as it takes,” without them “lawyering up.” This need to make “them” talk was cited repeatedly, endlessly, as the main justification for military detention, with references to “surprise” technologies to get prisoners to speak. As though Abu Ghraib had never happened, there was exuberant embrace of methods Senator Graham promised would not be publicized by the Army Field Manual.

Against the backdrop of President Obama’s recent exercise of that broadest of all possible executive actions—the targeted assassination of US citizen Anwar al-Awlaki—the controversy over military detention (and Obama’s threat to veto the NDAA) might seem less dramatic. (Senator Graham carried on gleefully about how much less constrained death is than “indefinite detention.”) But there is a crucial distinction: killing Awlaki, however extreme, was an action ostensibly based on tailored and specifically considered intelligence. Whether or not one agrees with it, it was not a decision generated by the kind of far-reaching, automatically militarizing mechanism this law would institutionalize.

As with much post-9/11 rhetoric, the Congressional debaters spoke of “terror” as though it were a clearly defined and embodied evil. But it is not at all clear what distinguishes mere dissent or sympathy or belief or commitment or satire from the kinds of expressions of hostile ideologies that this legislation would deem dangerous. If passed, the NDAA will inevitably be followed by a raft of First Amendment litigation. And what about “high crimes” like treason—would they still be tried in federal courts? Is treason more or less worrisome than “terrorism”?

And talk about iconic constitutional constructions: Glenn Beck’s online magazine, The Blaze, recently published a straightforwardly libertarian critique of the bill; the comments from his readers sizzle with Second Amendment belligerence from those “patriots” who declare that they are running out to buy more ammo and defecting to the hills. (“Want to see an army vet become a domestic terrorist?” reads the first comment. “If they pass this law…I will adopt a strategy of asymmetric warfare against the US government.”)

This latter breed of discontent also dovetails, no doubt, with deep, lingering resentments over states’ rights dating back to the Civil War, when the Union army occupied and governed Southern states in an effort to maintain order and protect ex-slaves. (Indeed, the proposed law would in effect revoke the Posse Comitatus Act, the Reconstruction-era law that bars the Army from engaging in domestic law enforcement.) In a less obvious way, the stripping of due process also re-establishes first- and second-class tiers of citizenship, eviscerating the Fourteenth Amendment by allowing the rights of citizenship to be suspended even more comprehensively than birthers and anti-immigration activists could have dreamed: by simple fiat.

“Citizen or not,” insists Senator Graham, it’s only “using good old-fashioned common sense” that persons covered by the act shouldn’t be given more rights than if they were in Afghanistan. And with that conceptual wand, I guess we have lowered the constitutional bar to whatever it is in Afghanistan.

3 comments

  1. New blog post from Patricia Williams on "The Dangerous Defense Bill Heading Towards Obama’s Desk" from the Nation http://t.co/8pWbelIZ

  2. New blog post from Patricia Williams on "The Dangerous Defense Bill Heading Towards Obama’s Desk" from the Nation http://t.co/8pWbelIZ

  3. #CU #PatriciaWilliams The Dangerous Defense Bill Heading Toward #Obama’s Desk http://t.co/NxxMC5xK #NDAA #Arbitraryarrest #vetonow

Add a comment


Comments are subject to moderation and do not necessarily reflect the opinions of
Columbia Law School or Columbia University.

FEATURED POSTS

CATEGORY CLOUD

"Homeland" Security Abortion Rights Activism Adoption adultery Advocacy Affordable Care Act Alien Tort Claims Act Amicus Brief Asylum Bankruptcy BDS Bullying Census Politics Children Citizenship Civil Unions Clinic Columbia Law School Compulsory Marriage Condoms Contraception Contraception Mandate Cordoba House Criminal Law Cures for Homosexuality Defense of Marriage Act Disability Rights Discrimination Divorce Domestic Partnership Domestic Violence Domestic Workers Don't Ask Don't Tell Earth Day Economic Justice Education Egypt Elections Employment Discrimination ENDA Estate Planning Events Family Law Fellowships femininity Feminism Free Speech Gender and Technology Gender Identity Discrimination Gendering the Economy Gender Justice GSL Online Haiti Hate Crimes Health Care Hilary Clinton Hillary Clinton HIV HIV Discrimination Hobby Lobby Homelessness Homophobia Housing Human Rights Identity Politics Illegitimacy (sic) Immigration Reform In-ing Incest India International Law Intersectional Feminism Islamophobia Israel Jobs Justice Sotomayor King & Spalding Labor Trafficking Land Reform Law School Legal Profession Legal Scholarship Lesbian & Gay Parenting LGBT Parenting Marital Status Discrimination Marriage Marriage Equality Masculinity Medicaid Michelle Obama Migration Military National Security Obama Administration Obama Appointments Obergefell Outing OWS Palestine Parenting Pinkwashing Policing Politics of the Veil Polyamory Popular Culture Pornograpy Pregnancy Presidential Politics Prisons Privacy Products Liability Profanity Prop 8 Prosecutorial Discretion Publications Public Rights/Private Conscience Public Rights/Private Conscience Project Queer Theory Queer vs. Gay Rights Race and Racism Racial Stereotyping Rape Religion Religious Accommodation Religious Exemption Religious Exemptions Religious Freedom Restoration Act Religious Fundamentalism Reproductive Rights Reproductive Technology RFRA Romania Rwanda Sartorial Commentary Schools Sex Discrimination Sex Education Sex Stereotyping Sexting Sex Trafficking Sexual Assault Sexual Duplicity Sexual Harassment Sexual Health Sexuality and Gender Law Clinic Sexual Orientation Discrimination Sex Work Silencing of voices SMUG Sodomy Law Reform Solidarity Sports Supreme Court Surrogacy Technology Title IX Trafficking Transgender Uganda Uncategorized Violence Women and Poverty Women of Color Work Zimbabwe

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.