NDAA, Take 2. What's Really In It?

The day after I posted my most recent piece, on the National Defense Authorization Act, I received a Facebook message from a reader who also happens to be a personal friend. He didn’t want to get into a public debate, he said, but he encouraged me to check out this article by Adam Serwer in Mother Jones. My friend continued, “And it's not as if Mother Jones is some right-wing outlet, either. If this was a Constitutional tragedy, MJ would be howling about it.” As it happened, I’d seen it, and, shortly thereafter, a similar essay by Wendy Gittleson on AddictingInfo and a rant by Milt Shook on AngryBlackLady.

Minor point first: I’m not convinced. Given a choice between Glenn Greenwald and The Guardian on the one hand and a couple of bloggers I’ve never heard of on the other, I find it difficult to come down hard on the side of the latter.

More importantly, as I fancy myself more interested in the ideas than in their proponents, even those who aren’t as appalled by the NDAA as I am are hardly enthusiastic. Serwer writes that the language of the bill “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.” Later he adds that “Codifying indefinite detention on American soil is a very dangerous step, and politicians who believe the military should have an even larger domestic counterterrorism role simply aren't going to be satisfied with this.” Gittleson calls the legislation “a stab to basic civil liberties, and possibly unconstitutional.” On PoliticsUSA, Jason Easley and Sarah Jones, arguing that the legislation does not apply to Americans, nonetheless write, “Yes, NDAA was poorly written originally and even after the changes is a crappy bill.” These are the people, mind you, who argue that it isn’t as bad as some of us worry.

Moreover, whatever else may or may not be true, Serwer’s argument that the bill is more or less benign because “A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power [to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US], should a future president try to exercise it” is flat-out inane. The courts will always decide on the constitutionality of a law, but 1). to argue, as Serwer does, that this bill won’t provide current or future Presidents cover to over-reach is naïve to the point of absurdity, and 2). do you really want to entrust your civil rights to the Roberts court?

All that said, I might well be wrong; I certainly hope I am. And that, more than the specifics of the case, is what I want to talk about this time around: the fact that we’re about to get another piece of legislation about which intelligent people disagree. That contention, however, is not so much about whether the policies are appropriate: I’ve yet to see any positive commentary about the NDAA that isn’t either bellicose blathering or a milquetoast assertion that it isn’t as bad as it might have been (“the version the President is going to sign is better than the version he was going to veto,” in Gittleson’s words).

No, the question here isn’t whether this is a good bill—it isn’t—but, rather, what it actually says. Serwer is right that the provision to exempt American citizens, that “Nothing in this section shall be construed to affect existing law or authorities,” is “cop-out language.” It allows itself, presumably intentionally, to be a Rorschach test for policy-makers: megalomanical Presidents (apologies for the redundancy) can see what they want; those capable in both intellectual and ethical terms of reading the Constitution will see it differently. All bets are off when the goobers that gave us Citizens United are making the call.

But it seems clear that at some level the legislators themselves can’t agree on what the legislation means. I’m not talking here about some purely active and 100% volitional misreading (cf. “death panels”). Nor am I talking about the all-too-common practice of voting on a bill without actually having, you know, read it. (Rep. John Conyers took a lot of heat a while back for admitting he didn’t actually read 1000-page documents crammed full of legalese. Neither do his colleagues, of course, presenting us with the dilemma of whether to condemn Conyers for his lack of shame at not doing his damned job or to grudgingly admire him for confessing to a sin we’re pretty damned certain he shares with literally every other member of Congress on either side of the aisle.)

Rather, in this case, the debate isn’t about whether it’s a good idea to allow potentially dangerous American citizens arrested in this country to be detained indefinitely without trial based on suspicion of terroristic affiliations: it’s whether this bill does that or not. Senators Franken and Paul think so; Senators Feinstein and Kirk don’t.

Senator Carl Levin, who co-authored the bill and therefore ought to know what was intended, said that although some changes were not made to the bill’s language after consultation with the Administration, these discrepancies are “relatively modest because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution.” But that, of course, isn’t necessarily what the bill says. And to say that Sen. Levin is pretty much a buffoon (just not quite as scary as his GOP counterpart, John McCain) is to engage in understatement rather than hyperbole.

Moreover, that same session in the Senate produced this exchange:

Senator Durbin: Section 1031, as I understand it, would be a departure from current law and would say that those who are American citizens can be detained indefinitely if they are suspected of certain terrorist conduct. I ask the Senator from Colorado: Is that the point the Senator made in his statement?

Senator Udall: The Senator from Illinois is correct. Mr. President, 1031 would do just that, and it would come directly at a piece of law, posse comitatus, which dates back to the Civil War, that is held dear by all of us in America because it distinguishes between the military used to protect us against foreign foes and how we manage our own civil affairs here at home. Also, as the Senator alludes to, it causes questions to be raised about something that is very sacred in our system of law, which is the writ of habeas corpus. You have to prove why you hold someone. You cannot detain an American citizen indefinitely in any other circumstance.

So where does that leave us? Damned if I know.

The media, useless as always, have generally avoided the issue altogether. Here’s the entirety of Charlie Savage’s discussion of the subject in the New York Times about President Obama’s decision to remove the veto threat:

…the bill includes a narrower provision, drafted by the Senate, authorizing the government to detain, without trial, suspected members of Al Qaeda or its allies—or those who “substantially supported” them—bolstering the authorization it enacted a decade ago against the perpetrators of the Sept. 11 attacks.

Notice anything missing? Like any mention of a). the temporal parameters of this detention, b). who determines (without a trial) what constitutes “substantial support,” c). whether this provision does or does not pertain to U.S. citizens (not the same thing as whether it changes existing law with respect to citizens), or d). whether the location of the arrest is relevant.

There’s a difference between arresting a Saudi national in Cairo and shipping him off to Gitmo for indefinite detention (not that I approve of that, either) and picking up an American citizen in Peoria based on the pretense of terroristic sympathies. The possibilities for abuse in the latter case are manifold. Seriously, if Newt Gingrich wants to arrest judges who don’t rule the way he wants them to, can you imagine what he or some like-minded lunatic might do to someone named Abdul Mohammed (or Bob Smith, for that matter, if ol’ Bob pissed him off enough), evidence or no evidence?

If you’re reading this blog, chances are pretty good you’re not a fan of the civil liberties implications that might be at play here. But are they at play? Neither the United States Senate nor the press seems to know. Perhaps, just perhaps, that’s not such a good thing.