National Defense Authorization Act of 2012

Traditionally, the National Defense Authorization Act is a yearly spending bill that allows the military to operate for the year covered by the bill. The yearly renewal of this bill has traditionally been quick and non-controversial.

However...

This year the NDAA has provisions that basically allows for two things:

1. Military detention (without trial) of those suspected of links to al qaeda, taliban, or of planning or carrying out attacks against the U.S. and coalition partners. It states that this detention will be continuous until the "end of hostilities".
   
2. "Transfer of custody" of "covered persons" to any foreign entity.

These two sections are troubling to me.

The "military detention" provision has a "waiver for national security" which applies to "paragraph 1", which allows for the military detention. "Paragraph 1" refers to paragraph two, which contains the specific limitation to suspected terrorists.

My concern is that this waiver could be interpreted to allow the Secretary of Defense to "waive" the limitation to suspected terrorists. The bill only requires a written "certification" be sent to congress that the "wiaver" is necessary for "national security". If such a waiver to submitted, it is conceivable that this could allow the indefinite military detention of individuals that have no association with terrorist groups.

The "transfer of custody" section is worrisome because it allows the military to skirt U.S. laws pertaining to treatment of prisoners (specifically those prohibiting torture) by sending "covered persons" abroad for "detention". This practice, known as "extraordinary rendition", has been in practice for years. However the authority to do this is pieced together from pieces of different laws and disparate provisions of the "Patriot Act". Since this authority is piecemeal, the legality of that authority has been questionable. If this law passes, "extraordinary rendition" will be codified in law.

There is a provision that supposedly exempts U.S. citizens from military detention. There is another provision that supposedly exempts "lawful resident aliens" (green card holders) and their activities within the United States. I struggle with these exemptions because most lawmakers specifically state that this applies "American citizen or not" (quoted from Lindsey Graham and verified by calling his office in DC).

There is legal ambiguity as to whether or not current law allows for the indefinite detention of U.S. citizens and "resident aliens". The only institution that could clear up this ambiguity is the Judicial branch. However, the bill specifically removes judicial oversight by moving the entire process to military tribunals. The Supreme Court could take the extraordinary step of declaring that citizens are "resident aliens" are NOT subject to this law. However, considering the current makeup of the court, and the fact that the entire process will be outside their jurisdiction, that possibility seems quite slim.

When I called Senator Graham's office to inquire about this, his staff seemed unaware of the provisions exempting U.S. Citizens and "resident aliens". I asked about the constitutionality of this bill, I was told that is the job of the Supreme Court.

This bill passed the House of Representatives, but that version didn't have these troubling provisions. Now that the bill passed the Senate, it must be "reconciled" with the House version, then the "reconciled" bill must be passed by both houses.

Even if you agree with the indefinite detention provisions, the legal ambiguity of existing detention laws makes this very dangerous. Please contact your representative in the House of Representatives and ask them to vote against any "reconciled" bill that includes these harmful provisions. These provisions were slipped into a spending bill to force it through congress. Afterall, any representative who votes against it will be labelled "unamerican" and "against the troops". Our representatives need to know that we will support them if they vote this bill down because of these provisions.

Use the following link to contact your representative:

https://writerep.house.gov/writerep/welcome.shtml

You can also call the white house and ask the President to veto such a bill if it reaches his desk.

White House Comment Line: 202-456-1111