(c) Josh Sager – December 2011

The 2012 National Defense Authorization Act is a perennial bill which appropriates money for military spending and research every fiscal year. Over the past 48 years, this bill has been reauthorized and our military has been funded, virtually without a hitch. This year, the NDAA re-authorization has an amendment, crafted by Mark Levin and John McCain, which gives the US military and executive branch vast new powers to detain Americans.

The amended NDAA would change the jurisdiction of all terrorism related suspects to the military, while at the same time removing a vast majority of the protection given to suspects. Anybody suspected of terrorism or providing “material support” to terrorist groups would be subject to detention without trial for an indeterminate amount of time; these suspects would have no rights to a lawyer, open trial, or to confront their accuser. Everybody suspected of terrorism would essentially be classified as an “enemy combatant”, regardless of citizenship, and lose their 5th 6th and 8th amendment rights. Currently, the classification of “enemy combatant” only applies to non-American citizens but if the amended NDAA passes the legislature and is not vetoed, this classification will be extended to Americans.

5th Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The NDAA would essentially exclude terrorism suspects from being protected by the Fifth Amendment. Suspects would be detained without a grand jury indictment, based upon the suspicion of military or intelligence officials. Once the suspect was detained, the suspect would be held without due process of law and would have no right not to incriminate themselves. Those detained would be held and interrogated for indeterminate amounts of time in an undisclosed location.

6th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

As enemy combatants, detained Americans would have none of the rights guaranteed under the 5th Amendment. Detainees would not be accorded the right to a trial, never mind a “speedy and public” one. As there is no trial, there is no way for an accused “combatant” to confront their accuser, call witnesses to their defense, or use the services of a lawyer. For all intents and purposes, the accused is held as a prisoner of war, where there is no defined enemy; with POWs, the soldiers are repatriated upon a treaty or victory, but without a defined enemy there can be no cessation of hostilities.

8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The NDAA amendment would completely disregard the 8th amendment as it regards to bail, and could bring about the use of abusive interrogation techniques on detained Americans. Under the “enemy combatant” status, a detainee is not entitled to bail at any amount and is automatically remanded into custody (not trial); what could possibly be more excessive than a blanket ban on bail for an entire class of suspect. While the judiciary has the right to remand dangerous individuals, the NDAA goes far beyond this in that regardless of evidence or history, all people suspected of a type of crime are automatically remanded.

As shown by recent scandals, those classified as “enemy combatants” often have their human rights abused while in detention. During the Bush administration there was a pattern of abuse and torture directed at military detainees, all of which were not American citizens. If the NDAA were to pass in its current form, American citizens will be exposed to the same abuses as was seen perpetrated against past “enemy combatants”: Water boarding, stress positions, sleep deprivation, loud noises, extreme temperatures and beatings.

Most Americans can agree that terrorism is a grave threat to our way of life and safety as a country. When fighting terrorism, we must balance our safety as a country against preserving our values as a free society. The amended NDAA poses a threat against every American in that anybody, regardless of where they are or whether they are actually guilty, can be detained without any of the rights that we are guaranteed as citizens. It doesn’t matter if you are innocent because under these new regulations, you would never be able to prove it; your only hope is that the government decides that it is wrong about you and releases you, however long that may take.

Our founders decided that the government should not have the right to simply declare you guilty and punish you accordingly, instead, giving the final decision on guilt to a jury of your peers. The amended NDAA gives the government the powers of judge, jury, and executioner over anybody SUSPECTED of terrorism or providing help to terrorists; the massive expansion in the power of the military over civilian matters is a large and dangerous step towards a police state.