Tag Archives: National Defense

Intentional Ambiguity: The NDAA Explained

by Alex Emmons, MC ’15, Co-Coordinator

On December 15, 2011, Congress passed the National Defense Authorization Act (NDAA). Just like they had the year before. And the year before that. The NDAA is a 700 billion dollar appropriations bill required to fund the Department of Defense. But, like so many appropriations, it comes with strings attached.

The 2012 NDAA quickly became the epicenter of a national controversy. Pundits declared that the law allowed indefinite detention of American Citizens without trial, ignoring due process rights. Republican officials defended the bill, claiming that it does not apply to American citizens.

The truth is unclear. Section 1021E of the NDAA asserts “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens.” The ambiguity rests in the phrase “existing law.” Tragically, “existing law” probably does not refer to the Bill of Rights.

Many legal scholars believe that it likely refers to the 2001 Authorization for Use of Military Force–a law that conferred unchecked authority on the military. To add to the uncertainty, the Supreme Court has failed to settle the issue. In Hamdi v. Rumsfeld, the Supreme Court ruled that due process for detainees can be limited and the burden of proof suspended.

The lack of clarity in the 2012 NDAA naturally concerned a group of US journalists. Fearing that honest reporting could lead to detention without due process, they filed suite in a New York Court on the grounds that the NDAA could violate the freedom of the press.

When District Court Judge Katherine Forrest interrogated the government’s attorneys about their interpretation of the NDAA. They repeatedly replied, “We are not prepared to answer that question.” Their failure to respond was so astounding that it indicated something worse than a lack of preparation. They did not intend the law to be clarified by judicial review. In May, Katherine Forrest courageously struck down the “indefinite detention” provisions in the NDAA. But her verdict fell on deaf ears. The Obama administration replied that her verdict applied only to the plaintiffs of the case.

The detention of any individual–citizen or non-citizen–without due process is wrong. The case of the 2012 NDAA demonstrates the need for clarity on the matter. While scholars remain uncertain, ambiguity leads to impunity. By passing legal codes too unclear to enforce, Congress has sanctioned human rights violations. Congress instead needs to assertively illegalize indefinite detention, for both citizens and non-citizens.

This July, the Senate will consider the NDAA for 2013. Senator Mark Udall (D-UT) is leading the fight against indefinite detention. Help him by signing his online petition.

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Filed under Domestic Politics, Human Rights, Indefinite Detention