U.S. Senate Passes The National Defense Authorization Act

The Huffington Post reports today that the U.S. Senate voted 93 to 7 to pass the National Defense Authorization Act (NDAA). In an interesting article featured on the American Constitution Society Blog, Stephen Vladeck, a law professor and Associate Dean at American University Washington College of Law, highlights some of the more controversial portions of the NDAA.

The NDAA, passed just over a decade after the Authorization for the Use of Military Force (AUMF), seems to greatly increase governmental power to detain persons suspected of participating in and aiding terrorist activities against the U.S. While terrorism awareness and prevention have obviously been priorities in the government since September 11, 2001, many believe this Act crosses lines that should have never been drawn. The AUMF left many questions unanswered and over the last decade, courts have attempted to answer some of these questions. For instance, they have reached conflicting views on whether AUMF authorizes the detention of U.S. citizens or non-citizens lawfully present within the United States. Most importantly though, the courts have consistently held that the purpose of the AUMF was to authorize the government to use military force on those reasonably believed to be tied to the September 11, 2001 terrorist attacks. A main concern of the NDAA, according to Vladeck, is that it severs the requirement that detention be tied to involvement with the September 11, 2001 attacks.

Many say that the NDAA expands the authority to detain to dangerous measures, disintegrating the boundaries used to protect the liberties of U.S. citizens. The NDAA authorizes, in addition to the AUMF,

"any detention of a person who was a part of or substantially supported Al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

According to Vladeck, "the NDAA effectively authorizes the military detention of any individual who provides assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict."

An obvious question is what the government would define as "direct support" of these enemy forces: money, outward praise, logical assistance, full-fledge involvement, etc. This particular language is undoubtedly vague and could include many different actions.

Another question with the language is what groups are included in the term "associated forces" because many may believe human rights activists, political protestors and even the infamous "occupiers" are "associated forces." Would that then permit the government to detain members of these "associated forces?"

Former FBI agent and author of the article in the Huffington Post, Coleen Rowley, expresses concern over another part of the NDAA; one that would be particularly damaging to the application of certain provisions of the Bill of Rights. According to Rowley, the NDAA would authorize the government to "decide who gets an old-fashioned trial (along with a right to an attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo." Some, including Rowley, believe the NDAA allows the government to treat U.S. citizens suspected of aiding terrorist groups as if they were "enemy combatants", and therefore, not to be afforded the same due process rights as other U.S. citizens accused of various crimes.

The biggest fear among the critics of the Act is that the already powerful U.S. Government would be given far more power than was originally intended and drafted into the Constitution. That U.S. citizens could be detained without due process for potential "support" or "aid" of enemy forces goes against the entire purpose of the Constitution.

For the vocal critics against the NDAA and all of those who may be quietly doubting its constitutionality, it seems President Obama has every intention of vetoing the Act once it reaches his desk. While that may provide some comfort, many fear this is only the first step to an eventual decline in the everyday liberties of U.S. citizens.