NDAA Update and Analysis

Analysis of the National Defense Authorization Act

{flike}It doesn’t take a rocket scientist to see what’s wrong with Section 1021 of the Defense Authorization Bill (H.R. 1540), which the President signed into law on New Year’s Eve.

Let’s assume you’re a member of the Michigan Militia.  That’s all it would take.

Because you once hobnobbed with Timothy McVeigh, an argument could be made that you could be arrested and held indefinitely, without due process, an attorney, or constitutional rights.


Because subsection (a) of Section 1021 says the President can use all “necessary and appropriate force” to “detain covered persons” and hold them under the “law of war.”

Subsection (c) says those persons can be “[detained] under the law of war without trial until the end of hostilities…”  They can also be tried by a military court [section (c)(2)] or subject to rendition to a country which would torture them in ways which wouldn’t be allowed here [section (c)(4)].

In other words, if you’re a “covered person” -– and nothing more — you can be arrested and detained indefinitely, tried without most civilian rights, and/or shipped abroad for torture, because it’s unlikely that the threat of terror is going to end anytime in our lifetimes.

So what is a “covered person”?

Under section 1021(b)(1), anyone who knowingly or unknowingly aided or harbored a 9/11 culprit in any way is a “covered person.”  Ironically, this is reminiscent to the trial and execution of Mary Surratt, who owned the boarding house at which the Lincoln assassination conspirators met and may or may not have known what was happening under her roof.

Even more broadly, however, section 1021(b)(2) defines a “covered person” as a person who “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…”

“Belligerent act” is not defined for purposes of this section.

But, at its core, a person is a “covered person” -– who can be arrested and held indefinitely without trial –- if that person “substantially supported …any person who has committed a belligerent act,” whether knowingly or unknowingly.

Given the breadth of this statement, you would hope that its components would be defined, for purposes of that section, with precision.  But they aren’t.

In particular:

* Is blowing up a federal building a “belligerent act”?  If so, are militia members who associated with Timothy McVeigh all “covered persons” -– even if they didn’t understand his intentions?  What about a gun dealer who sold him a gun?

* Is Barack Obama “substantially support[ing] … the Taliban” if he releases prisoners from Guantanamo in order to get them to the negotiating table?

* Do “associated forces” have to be “associated” with al-Qaeda or the Taliban -– or can they consist of persons associated with each other, if one or more members engage in “hostilities” against, for instance, Egypt?  And do “hostilities” include efforts to overthrow the government of Hosni Mubarak?

These questions are unanswerable because section 1021 is not legislation, but rather political positioning by low-IQ legislators who are incapable of formulating legislation which could, with precision, achieve their ostensible objectives.

Incidentally, section 1021 does apply to American citizens acting on American soil.  Although subsection (e) says that the section doesn’t affect current “authorities” governing those issues, the Bush administration established the “precedent” that the President’s authority to combat terrorism under his inherent authority under Article II of the Constitution is effectively unlimited.