There’s been a lot of controversy around two specific sections of Senate Bill S. 1287 “The National Defense Authorization Act (NDAA)” that was rushed to the Senate floor today. They are sections 1031 and 1032, which are both related to the detention of terror suspects. Section 1031 would apparently give the President the power to order the military to subject United States Citizens and other persons present in the United States to indefinite detention without trial or charge. The standards do not even require an allegation or proof beyond a reasonable doubt that the detained person caused harm to the United States. The minimal standards are mere membership or support of a recognized terrorist group. That means a Christian relief worker could end up in indefinite military detention without charge or trial for giving food or medical assistance to someone who turns out to have been a Taliban member or supporter. The new powers are not limited to threats to the United States either but to unspecific ‘coalition partners’. Section 1032 another very problematic section would possible put citizens and others detained in the United States under military control.
There has been a lot of push back against both of these sections from multiple different sources included the Department of Defense, Senate Judiciary Committee, the White House and civil liberty groups. The push back has been a result of the opaque process, lack of consultation with other committees of jurisdiction, clear violation of the Posse Comitatus Act of 1878, lack of due process and basic Constitutional protections and an indefinite extension of the so-called war on terror. No president should ever be handed this kind of power to use against American citizens.
The two Senators who are pushing the bill with the controversial provision intact are Carl Levin (D-MI) and John McCain (R-AZ), the chairman and ranking member of the Senate Armed Services Committee, who in closed session this week approved the final language of the bill with only slight modifications to the troubling sections. Unbelievable, Senators Levin and McCain did not even hold a single hearing on the provisions and passed them through committee in a secret meeting that was closed to the public.
Senators Patrick Leahy (D-VT) and Dianne Feinstein (D-CA) the chairs of the Judiciary and intelligence Committees who were left out of the process issued a joint statement stating “Neither the Senate Judiciary Committee nor the Senate Intelligence Committee—the committees with primary jurisdiction over terrorism matters—were consulted in the drafting of the proposals approved today by the Armed Services Committee. We continue to oppose these measures.”
Secretary of Defense Leon Panetta responded to the Levin-McCain deal by issuing a letter critical of it. In his letter regarding section 1032 he stated “it continues to be the case that any advantages to the Department of Defense in particular and our national security in general in section 1032 of requiring that certain individuals be held by the military are, at best, unclear. This provision restrains the Executive Branch’s options to utilize…all the counterterrorism tools that are now legally available.” He continued “ the revised language adds a new qualifier to “associated forces” – that acts in coordination with or pursuant to the direction of al-Qeada.” In our view, this new language unnecessarily complicates our ability to interpret and implement this section.”
Civil Liberty groups came out against the McCain-Levin deal including Laura Murphy, the Director of the ACLU’s Washington Legislative Office, who said “ These provisions turn American military authority against America’s own citizens far from any battlefield. Even civilians picked up on American soil could end up in indefinite military imprisonment without charge or trial. More than 10 years after 9/11, with Osama Bin Laden dead and military working to get out of Iraq and Afghanistan, there is no reason for the Senate to pass an indefinite detention without charge or trial statute that will hand over new powers to the President to order the military to lock up Americans and other civilians far from any battlefield.”
Laura’s concerns are shared by Former Assistant Attorney General (under Reagan) Bruce Fein who when asked his thoughts on NDAA said “The NDAA salutes the militarization of law enforcement without law—the subordination of civilian to military law protested by the Founding Father in the Declaration of Independence.”
It seems clear that there is something for everyone to hate in the McCain-Levin deal. The best thing that could happen now would be for the deal to fall apart and for the Senate to have to deal with it again but later using an open process. Hopefully, if this occurs, they will take into consideration, as is their obligation under the Constitution the Constitution itself, the rights its guarantees as well as the political process for decision-making it lays out.