The NDAA (National Defense Authorization Act) and Authoritarianism

The incongruity surrounding the initiation of the year 2012 on December 31st 2011, predictably went over the heads of a populace bubbling with infotainment rather than information. Whilst revelers were fawning the arrival of yet another year that would presumably bring them a period of transition worth celebrating, the President of the United States was signing the National Defense Authorization Act or NDAA. The President also offered a signing statement that read:

 I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists… I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded…

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.

The Bill though a far cry from what has been described by some civil liberties advocates as America’s “Maya Moment” a doomed precipice “when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.” Should concern anyone apprehensive about the Executive’s military detention authority and the closing of the Guantánamo Bay Prison.

Besides granting The Executive Branch broader authority and presumable preference for indefinite military detention, rather than criminal arrest and prosecution for suspected terrorists as described in section 1022, the bill also contains troubling provisions as highlighted in Subtitle D (“Counterterrorism”) that will continue to hinder the possibility of closing the Guantánamo detention facility. Contrary to some reports concerning the “authority” provision of subtitle D, section 1021 in which congress has made military trials and indefinite detention a permanent part of American law, the section as is expressly noted does no such thing. Marty Lederman and Steven Vladeck analyze the section in a their own review as such:

To be sure, as David Cole notes, the law will “put [] Congress’s stamp” on a particular interpretation of the Executive’s military detention authority. But that is hardly surprising: The AUMF (Authorization for Use of Military Force) interpretation reflected in section 1021 is the one the Obama Administration has been pressing upon the habeas courts since March 2009, namely, that the executive has the authority—to the extent consistent with, and as informed by, the laws of war—to militarily detain a person “who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks,” or 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.”

The only context in which this standard has played out thus far in the GTMO (Guantánamo) habeas proceedings is in determining whether particular detainees can be held in military detention on the basis that they are “part of” al-Qaeda or the Taliban, or an “associated” force, or co-belligerent, of al-Qaeda or the Taliban that is likewise “engaged in hostilities against the United States or its coalition partners.” As applied to such persons, judges across the jurisprudential spectrum have approved the DOJ (Department of Justice) standard, following the lead of the Supreme Court’s explanation in Hamdi v. Rumsfeld that the AUMF should be construed in light of “longstanding law-of-war principles” to authorize the detention of enemy forces “for the duration of the particular conflict in which they were captured,” for the purpose of preventing them “from returning to the field of battle and taking up arms once again.”

The section underlies what the courts have already authorized in short; the relevant schism concerns such concentrated power being appropriated into a piece of legislation. The facts surrounding the NDAA though more sober than what has been dispensed by critics including myself, should not deter the overarching questions most reasoned individuals have about the broader implications of unhindered Executive power. History has revealed repeatedly the folly of authoritarian policy pursued by political leaders in a number of varying circumstances, which has more often than not lead to inevitable tyranny and further social unrest.

The NDAA has justly brought to light serious reservations concerning the proper role of Presidential powers. The NDAA has also persuaded many to view the bill as a further extension of the Government to legitimize torture, authorize warrantless surveillance, and approve of certain war crimes. The broad and often obfuscating language in the bill seems to conjure instances of doublespeak, where an ever-suffocating war on terror reaches a socially acceptable and codified infinitesimal inevitability, a war that further consolidates the political leadership of the country to legitimate hovering infringements on the constitutional rights of citizens.

The problems are vast and the absurdities of war help to propel the arguments of governments to institute particular provisions, more so when the definition of “terrorism” and “terrorist” can become arbitrarily applied. In moments such as these it is of vital importance that those supportive of social democracies and of maintaining a political infrastructure that has a proper balance of power, remain prepared to question the wisdom of the political classes and hold them accountable.