NDAA and the End of the American Experiment - Budget Week


An Editorial:

President Obama giving a speech in Washington D.C. Photo by James O’Malley.

“They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”
– Ben Franklin

“And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up! You don’t get a lawyer!’”
– Senator Lindsey Graham

It finally happened. I lost whatever faith I had in Barack Obama, and our political system as a whole. On the 220th anniversary of the Bill of Rights, the president put the final nail in the coffin of the Constitution by signing the National Defense Authorization Act for the Fiscal Year of 2012 (NDAA).

The NDAA is an annual bill that is used to allocate funds for all branches of the military: for research, weapons, and all other defense functions. This year, the 565-page, $670 billion bill was drafted in secret by Senators Carl Levin and John McCain, but the bill does a lot more than allocate funds. McCain and Levin have snuck in a provision on counter-terrorism that will change civil liberties as we know it.

After 9/11, the Bush administration passed several laws including the Use of Military Force Act, the Patriot Act, Military Order No. 1, and the Homeland Security Act, all of which did significant damage to our Constitution and Bill of Rights.

So after 8 years of Bush, America elected a constitutional lawyer to fight for our civil liberties, but his recent decision to sign the NDAA has sealed his legacy as “the president who signed away the Bill of Rights, and made indefinite detention, without charge or trial, into law.”

Anyone who claims that the bill does not authorize the indefinite detention of American citizens simply needs to look at section 1021 of the NDAA where it states:

“Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain ‘covered persons’ pending disposition under the law of war.”

The bill defines “disposition under the law of war” as:

“Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”

And defines “covered persons” as:

“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.”

It is the phrase “including any person who has committed a belligerent act”, which is most alarming. With the passage of the NDAA, any American could one day find himself or herself branded a “belligerent” and thus subject to the complete confiscation of his or her constitutional liberties and never-ending incarceration in a military prison.

In fact, the president himself agrees that the bill changes the laws for indefinite detention, and authorizes him to detain American citizens, as he says in his signing statement:

“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.”

This statement shows that Obama knows fully well the constitutional implications of the bill but remember, a signing statement is not law; it is just the way the current president feels about the bill, and how he will choose to enforce the law. This does not mean that the next president will feel the same way about the bill, or interpret his authority.

Since the NDAA states that it is the “authority of the president to use all necessary and appropriate force” and not any other accountable official, we’ve essentially declared (as author Robert Shanlin categorized it to me in an interview) an “imperial presidency.”

As the Director of the ACLU, Anthony Romero, stated, “the authority in the defense bill could be used by this and future presidents to militarily detain people captured far from any battlefield.”

Plus, how would we even know if Obama keeps his promise to uphold the Constitution above the authorities granted in the NDAA? If he has the authority to declare you “belligerent,” and he is able to use military force to throw you in Guantanamo, and hold you there indefinitely without a lawyer, who would ever know?

Our fifth and sixth amendment rights, which guarantee the right to a speedy, public trial, and the due process of law, are so important because they used to be “the only checks on an imperial presidency – on a king, who can declare anything he wants.”

After all, what’s the use of having first amendment rights if you don’t have the fifth and sixth amendment rights? What good is the right to dissent if the government has the right to arrest you, and throw you in Guantanamo without a trial?

Below is a rather schizophrenic speech from Senator Lindsey Graham on the Senate floor, as he defends the NDAA:


Senator Graham states, “We are at war. The Authorization to Use Military Force passed by the Congress right after the attacks against this Nation designates al-Qaida as a military threat, not a common criminal threat, so we apply the law of war.”

The problem is you cannot declare war on a single terrorist or terrorism in general. The problem with fighting a war on terror is that it’s in many ways a war on ideas.

As David Cross said in his stand-up special Shut up You Fucking Baby, “You cannot win a war on terrorism. It’s like having a war on jealousy. … It’s an absurd notion. At no point in time are we gonna go, ‘Woo! Got em all. Everybody loves us again!’ It’s just like the war on drugs; when are you ever going to get rid of drugs or drug users entirely? You can’t.”[1]

So, the idea that we can hold an American citizen “until the end of the hostilities” is a fallacy because there can be no end to these hostilities, as the ACLU said of the bill, “it is a worldwide war without end, and without clear enemies.”

We have reached a tipping point, and the drafters of the bill have made their goals very clear — they want a worldwide military battlefield that extends to your hometown.

This changes the idea of war from an intercontinental struggle to an intra-continental struggle. By eliminating the fifth and sixth amendments, the “Constitution will no longer be the ultimate law of the land,” the president will and that is called a dictatorship! There is no way around it, there is no explaining it away, or hiding from it.

As Robert Shanlin, author of Mommy, Why Do Rebublicans Hate America? explained to me, “The United States is an empire – there are 150 something countries in the world we have military bases on, and empires tend not to be very democratic. Empires, historically, with their military concentrations always tend to erode rights all the time, and we’re heading that way. We are becoming a ruling-class dictatorship.”

We are seeing this erosion of our rights today, and it will get much worse before it gets better. We will not fight wars on terrorism, but wars that are terrorism. Our future wars will be fought in the homeland, against the homeland, and by the homeland.

In short, if we are not vigilant about our rights, we may be nearing the “end of the American experiment.”

Here is a link to the ACLU petition to fight worldwide indefinite detention for as long as it takes.


1. Cross, David. Shut Up, You Fucking Baby. Sub Pop, 2000. CD.