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The Truth About the National Defense Authorization Act

The opinions expressed by columnists are their own and do not necessarily represent the views of

Last week, the Senate voted 93-7 to pass S 1867, the National Defense Authorization Act. Congress has passed this Act every year since 1961. The Act sets policy and outlines financial and legal specifications for the U.S. Department of Defense, such as benefits for military personnel and purchase of equipment. The ACLU, Occupy San Francisco and other left wing groups are hysterically protesting that one of its provisions encroaches on civil liberties, and Obama has threatened to veto it. Section 1032 states that suspected terrorists related to al Qaeda and 911 shall be detained indefinitely by the military without a civilian trial until the end of authorized military hostilities.

The Senate Foreign Service Committee leadership asserts that the controversial provision merely codifies existing law. Liberal columnist Glenn Greenwald writing for Salon agrees, “…it doesn’t actually change the status quo all that much.” In Hamdi v. Rumsfeld (2004), the U.S. Supreme Court held that U.S. citizen and suspected terrorist Yaser Esam Hamdi could be held indefinitely as an “illegal enemy combatant.” However, the court qualified it by saying that U.S. citizens have the right to challenge their enemy combatant status before a judge. U.S. citizen and accused terrorist Jose Padilla, who was apprehended while plotting to set off a dirty bomb, was arrested in the U.S. and held by the military without a trial for three and a half years. The Fourth Circuit has upheld his detainment.

Section 1032 applies to both terrorists arrested overseas and on U.S. soil. An amendment failed that would have exempted U.S. citizens. U.S. citizens are not included in the mandatory detention provision, instead the bill states that they may be detained, and an amendment was added giving the president the option to give them a civilian trial instead.

A compromise amendment was adopted which recognizes that existing laws regarding U.S. citizens suspected of terrorism shall be respected. An amendment by Dianne Feinstein (D-CA) to limit military detentions to only those captured overseas failed by 55-35, and an amendment by Mark Udall (D-CO) to strip out the entire detention provision failed by 67-31.

Some on the right are also speaking up against the bill. A writer for Forbes has labeled it "the greatest threat to civil liberties Americans face." Senators Rand Paul (R-TX) and Mark Kirk (R-IL) were the only Republican Senators to vote against it.

Opponents contend it violates due process protections provided in the Sixth Amendment’s right to a trial as well as Article 3, Section 3 of the Constitution, which guarantees those accused with treason additional due process protections. The bill is accused of significantly expanding the military’s detention authority. Hamdi v. Rumsfeld is distinguished by pointing out that Hamdi was arrested overseas, not in the U.S. Critics assert it turns the entire world into an endless battlefield, observing that it has been over 10 years since 911.

This is just more of the same old debate that has been going on for the past 10 years over detaining suspected terrorists without a trial. The problem is that the world has changed due to terrorism. Before the surge of terrorism, war was black and white, fought in identifiable locations and usually with a clear beginning and end. Now, terrorists come from multiple countries and strike multiple countries periodically and indefinitely. The fundamental question comes down to whether terrorism should be treated like war. If it is not and addressed through regular law enforcement, suspected terrorists will receive the full panoply of rights provided to regular criminals.

Ron Marks, Senior Fellow at the George Washington University Homeland Security Policy Institute, believes there no longer needs to be a distinction. “We can debate the merits of 20th century laws that distinguish between U.S. soil and overseas,” he wrote in a defense of the Act.  In some ways, it is almost quaint. But quaint will not deter our enemies.” Sen. Kelly Ayotte (R-NH) argues that the bill is needed because “America is part of the battlefield.”

There needs to be a more honest debate over the Act. Right now the hysterical protests against it are not providing a full and accurate portrayal of what the Act actually does. It merely codifies existing federal law. Omitting key information does not bolster the philosophical argument against military detainment of suspected terrorists, but creates a perception that opponents are using deceptive tactics to sneakily shove through an unpopular position. There are some persuasive arguments against it that should be thoroughly analyzed without the veil of misleading language. Greenwald, one of the few on the left to honestly evaluate the bill, sums up the Act the best, “To be perfectly honest, I just couldn’t get myself worked up over a bill that, with some exceptions, does little more than formally recognize and codify what our Government is already doing.”

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