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Jennifer is Co-host of The Story of Liberty Radio Broadcast, video editor and creator, blogger & Web designer for the Story of Liberty. TheStoryofLiberty.net

What is NDAA?

There has been much controversy about the National Defense Authorization Act. Opinions range from, “Its a good bill for our protection,” to “This bill destroys the Constitution.” I have put together some information, as well as my own personal opinions about NDAA here in this post. After doing your own research, let us know what you think by taking our poll below.

The National Defense Authorization Act is a United States federal law specifying the budget and expenditures of the United States Department of Defense.  Each year’s act also includes other provisions.

Doesn’t sound so bad, does it? Well, as we all know, the politcans like to add things to bills that may or may not be good for the American People.

Here’s the problem, the language in many parts of the bill are vague and dangerous at best. President Obama signed the National Defense Authorization Act (NDAA), codifying indefinite military detention without charge or trial into law for the first time in American history. The NDAA’s dangerous detention provisions would authorize the president — and all future presidents — to order the military to pick up and indefinitely imprison people captured anywhere in the world, far from any battlefield.

Well… how is this bad? We want terrorists detained, questioned, captured… right?

Here’s the problem, the bill takes away the right of the accused by trial. This means the government can call you a terrorist and then you have no way to fight back. Your just at their mercy.

How is this Constitutional? Its not. The Sixth Amendment (Amendment VI) to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.

“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 National Defense Authorization Act (NDAA) for Fiscal Year 2012 was signed into United States law on December 31, 2011 by President Barack Obama.

The Act authorizes $662 billion  in funding, among other things “for the defense of the United States and its interests abroad.” In a signing statement, President Obama described the Act as addressing national security programs, Department of Defense health care costs, counter-terrorism within the U.S. and abroad, and military modernization. The Act also imposes new economic sanctions against Iran (section 1045), commissions reviews of the military capabilities of countries such as IranChina, and Russia, and refocuses the strategic goals of NATO towards energy security.

The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled “Counter-Terrorism.” In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority. Although the White House and Senate sponsors maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress “affirms” this authority and makes specific provisions as to the exercise of that authority.  The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU), the Bill of Rights Defense Committee, and some media sources which are concerned about the scope of the President’s authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces.

Additional Reading: http://www.theblaze.com/stories/can-the-indefinite-detention-bill-send-americans-to-military-prison-without-trial/

The key thing to understand here is that  NDAA does not just apply to Foreign terrorists, it also applies to American Citizens.

You may say: “Well, I don’t participate in any crazy terrorist stuff, so why worry?”

That’s another problem. The government has made new rules on who is and who is not a terrorist.. and the list may shock you. Here are a few examples:

  • Tea Party Activists: The political Left demonized peaceful Tea Party activists as right-wing extremists, leading to the second most powerful official in the U.S. government, VP Joe Biden, to liken them to terrorists.   Do you sympathize with those who are angry about bank bailouts on the backs of taxpayers? Well, you’re likely a terrorist in the eyes of the State.
  • 7 Days of Food: The Department of Justice and FBI considers you a terrorist threat if you have more than 7 days of food stored, as explained by Rand Paul on the Senate floor:
  • Missing Fingers: The document referred to by Rand Paul above, also claims that if someone is missing a finger or has burn marks, they’re more likely to be a terror suspect.
  • Buying Flashlights: Also from the same official source, if you’re buying night-vision devices including flashlights, you should be considered a terror suspect.
  • Paying Cash at Hotels: Watch out if you want to pay with cash for hotel rooms.  This DHS commercial indicates that you’re a terror suspect if you do:
  • Texting Privately in a Public Place: According to this DHS commercial for their citizen spy program, if you’re texting while sitting in a public park, but trying to keep it concealed from people who pass by, you should be reported for suspicious terrorist activity:
  • Belief in Conspiracies — Obama’s Information Czar, Cass Sunstein, has identified those who hold conspiracy theories as targets for online “cognitive infiltration.”  Do you question the motives for war?  Question the motives of the private Federal Reserve bank?  Question any government policies? Chances are you already have been marked as a suspect.

  • Own Precious Metals 
    – Despite the fact that the Federal Reserve paper note (a.k.a. the dollar) is only sustained by faith, you could now be a suspected terrorist if you would like to preserve your wealth with something that holds real value like precious metals.  And forget about establishing an alternative currency made from silver or gold like Bernard von Not Haus as you may be lumped into a “unique form of terrorism.”
  •   Owning guns and ammo

While Obama did issue a “signing statement” that he would not enforce the “Detention of American Citizens” which the bills allows for… should be believe him? Or should be trust future Presidents with this Unconstitutional power?
From Wikipedia: According to Senator Carl Levin, “the language which precluded the application of section 1031 to American Citizens was in the bill that we originally approved in the Armed Services Committee and the Administration asked us to remove the language which says that US Citizens and lawful residents would not be subject to this section”. This was entered into the Congressional Record on November 17th, 2011. (Note that section 1031 of the Senate bill became section 1021 in the final bill and law.)

Requirement for military custody: Section 1022

All persons arrested and detained according to the provisions of section 1021, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces. The law affords the option to have U.S. citizens detained by the armed forces but this requirement does not extend to them, as with foreign persons. Lawful resident aliens may or may not be required to be detained by the Armed Forces, “on the basis of conduct taking place within the United States.”


And it should also be remembered that the very bill President Obama threatened to veto was controversial due to the language the Obama White House itself pressured Congress to add to the bill, according to Sen. Carl Levin (above).

Second, signing statements are not law, and are not a Constitutional power granted to the executive branch; any reassuring (or troubling) language within has no binding status– though it may shed light on the intent/character of the chief executive. However, the statement itself does not indicate any deviation of intent from the law as written and signed.

From Wikipedia: The Constitution does not authorize the President to use signing statements to circumvent any validly enacted Congressional Laws, nor does it authorize him to declare he will disobey such laws (or parts thereof). When a bill is presented to the President, the Constitution (Art. II) allows him only three choices: do nothing, sign the bill, or (if he disapproves of the bill) veto it in its entirety.

  • Legal arguments that the legislation does not allow the indefinite detention of US citizens

Mother Jones has written that the Act “is the first concrete gesture Congress has made towards turning the homeland into the battlefield,” arguing that “codifying indefinite detention on American soil is a very dangerous step.” The magazine has nevertheless contested claims by The Guardian and The New York Times that the Act “allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay,” writing that “they’re simply wrong… It allows people who think the 2001 Authorization to Use Military Force against the perpetrators of the 9/11 attacks gives the president the authority to detain US citizens without charge or trial to say that, but it also allows people who can read the Constitution of the United States to argue something else.”[45] As legal commentator Joanne Mariner pointed out in an article in Verdict, the scope of existing detention power under the AUMF is “subject to vociferous debate and continuing litigation.”[46] In the years that followed the September 11 attacks, the AUMF was interpreted to allow the indefinite detention of both citizens and non-citizens arrested far from any traditional battlefield, including in the United States.

Other legal commentators argue that the NDAA does not permit truly “indefinite” detention, given that the period of detention is limited by the duration of the armed conflict. In making this claim, they emphasize the difference between (1) detention pursuant to the “laws of war” and (2) detention pursuant to domestic criminal law authorities.[47] David Rivkin and Lee Casey, for example, argue that detention under the AUMF is authorized under the laws of war and is not indefinite because the authority to detain ends with the cessation of hostilities. They argue that the NDAA invokes “existing Supreme Court precedent . . . that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as ‘combatants’ or ‘belligerents.'” This reflects the fact that, in their view, the United States is, pursuant to the AUMF, at war with al-Qaeda, and detention of enemy combatants in accordance with the laws of war is authorized. In their view, this does not preclude trial in civilian courts, but it does not require that the detainee be charged and tried. If the detainee is an enemy combatant who has not violated the laws of war, he is not chargeable with any triable offense. Commentators who share this view emphasize the need not to blur the distinction between domestic criminal law and the laws of war.[47][48]

  • Legal arguments that the legislation allows indefinite detention

The American Civil Liberties Union has stated that “While President Obama issued a signing statement saying he had ‘serious reservations’ about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA.” and, despite claims to the contrary, “The statute contains a sweeping worldwide indefinite detention provision… [without] temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.” The ACLU also maintains that “the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.”[49]

  • Proposed legislative reforms

Following the passage of the NDAA, various proposals have been offered to clarify the detainee provisions. One example, H.R. 3676, sponsored by U.S. Representative Jeff Landry of Louisiana, would amend the NDAA “to specify that no U.S. citizen may be detained against his or her will without all the rights of due process.” Other similar bills in the U.S. House of Representatives have been introduced by Representatives John Garamendi of California and Chris Gibson of New York.

Statement by the President on H.R. 1540

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. 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.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

BARACK OBAMA
THE WHITE HOUSE,
December 31, 2011.

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2 Comments on “What is NDAA?”

  1. Doggoneit March 20, 2012 at 2:23 pm #

    Honestly, does anyone truly believe that either Democraps or Republican’ts are at all concerned with what is actually Constitutional? Yeah, I didn’t think so.

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  1. Obama Signs Executive Order Declaring International Law for the United States | The Story of Liberty - May 3, 2012

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