The Real Problem with the National Defense Authorization Act

by Laurence M. Vance
Jan. 02, 2012

For each of the past forty-eight years, Congress has passed the misnamed National Defense Authorization Act to set forth the budget of the Defense Department. President Obama just signed into law the latest version of the NDAA, but not without some controversy.

The House originally passed this 1145-page bill (H.R.1540) back on May 26 by a vote of 322-96. Only six Republicans voted against the bill (Justin Amash, John Campbell, Jason Chaffetz, John Duncan, Tom McClintock, & Ron Paul).

The 926-page Senate version of the bill (S.1867) was passed on December 1 by a vote of 93-7. Only three Republicans voted against the bill (Tom Coburn, Mike Lee, & Rand Paul). The Senate then incorporated the measure in a now 908-page H.R.1540 as an amendment.

The original House bill contained an affirmation in section 1034 that the president has "the authority to detain belligerents," until "the termination of hostilities," including persons who "(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or (B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A)."

But it is the Senate version that, as amended in two ways, raised such a firestorm of controversy.

Conservative, religious, and animal-rights groups were upset with a provision in the Senate bill seen as legalizing sodomy and bestiality in the military. The Senate bill simply says, buried in division A – DEPARTMENT OF DEFENSE AUTHORIZATIONS, title V – MILITARY PERSONNEL POLICY, subtitle E – Military Justice and Legal Matters Generally, section 551 – REFORM OF OFFENSES RELATING TO RAPE, SEXUAL ASSAULT, AND OTHER SEXUAL MISCONDUCT UNDER THE UNIFORM CODE OF MILITARY JUSTICE, (d) REPEAL OF SODOMY ARTICLE, that "Section 925 of such title (article 125 of the Uniform Code of Military Justice) is repealed." This is a reference to title 10, subtitle A, part II, chapter 47, subchapter 10, section 925 of U.S. Code, which states:

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.

(b) Any person found guilty of sodomy shall by punished as a court-martial may direct.

Section 125 of the UCMJ adds this explanation:

It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.

The Senate bill also directed that the two other mentions of sodomy in U.S. Code title 10, subtitle A, part II, chapter 47, subchapter 8, section 843, and subchapter 10, section 918, be excised.

Civil libertarians of all stripes were upset with a provision in the Senate bill that would codify the power of the president to use the military to indefinitely intern anyone, without charges or trial, anywhere in the world – including American citizens on U.S. soil.

The most worrisome sections of the bill are found in division A, title X, subtitle D, sections 1031 and 1032. I give here the sections in their entirety because we will return to them later.

SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) IN GENERAL. – Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS. – A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) 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.

(c) DISPOSITION UNDER LAW OF WAR. – The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) CONSTRUCTION. – Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES. – Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS. – The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).

SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.

(a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR. –

(1) IN GENERAL. – Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.

(2) COVERED PERSONS. – The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined –

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

(3) DISPOSITION UNDER LAW OF WAR. – For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033. 9

(4) WAIVER FOR NATIONAL SECURITY. – The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS. –

(1) UNITED STATES CITIZENS. – The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

(2) LAWFUL RESIDENT ALIENS. – The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

(c) IMPLEMENTATION PROCEDURES. –

(1) IN GENERAL. – Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.

(2) ELEMENTS. – The procedures for implementing this section shall include, but not be limited to, procedures as follows:

(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.

(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.

(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.

(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.

(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.

(d) EFFECTIVE DATE. – This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

FBI Director Robert Mueller, Secretary of Defense Leon Panetta, and Director of National Intelligence James Clapper have all publicly opposed the bill. All three wrote letters to Congress on the matter. Mueller wrote that the "presumption of military detention" would "inhibit our ability to convince arrestees to cooperate." Panetta warned that the bill "imposes a whole new restraint on the flexibility we need to pursue our counterterrorism efforts." A group of twenty-six retired generals and admirals wrote to senators that the new provisions in the NDAA would "do more harm than good."

Thirty-two Democratic members of Congress sent their own letter to the House and Senate Armed Services Committee leaders in protest of these provisions, saying:

The Senate-passed version of the NDAA, S. 1867, contains Section 1031, which authorizes indefinite military detention of suspected terrorists without protecting U.S. citizens’ right to trial. We are deeply concerned that this provision could undermine the Fourth, Fifth, Sixth, Seventh, and Eighth amendment rights of U.S. citizens who might be subjects of detention or prosecution by the military.

One signer of the letter, Rep. Martin Heinrich, stated: "These provisions are deeply concerning and would risk putting American citizens in military detention, indefinitely. In short, this authority is at complete odds with the United States Constitution."

The ACLU urged the president to veto the bill. The New York Times editorialized against the bill.

A contributor to Forbes maintained that the NDAA is "the greatest threat to civil liberties Americans face."

Republican representative Justin Amash termed the bill "one of the most anti-liberty pieces of legislation in our lifetime."

Republican senator Rand Paul said: "If you allow the government the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whim of those in power. That is a dangerous game."

Paul, as mentioned, was one of only three Republican senators to vote against the bill. The other warmongering, police statist Senate Republicans are typified by Lindsey Graham, who stated: "It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next. And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’"

The version of the NDAA just signed into law by President Obama is a result of a conference committee between the House and the Senate to work out a compromise on their version of H.R.1540. The House passed the final measure on December 14 by a vote of 283-136. The Republican vote was 190-43. The Senate approved the final measure on December 15 by a vote of 86-13. But this time Republican senators Coburn, Lee, and Paul were joined by senators Mike Crapo, Jim DeMint, and James Risch.

So, what became of the sodomy and indefinite detention provisions?

The Senate attempt to strip the sodomy language out of the UCMJ was turned back by the House. According to the conference report (H.REPT. 112–329):

The Senate amendment contained a provision (sec. 551) that would amend section 920 of title 10, United States Code (Article 120 of the Uniform Code of Military Justice (UCMJ)), to separate Article 120, UCMJ, into three separate articles applying to the offenses of rape and sexual assault, sexual offenses against children; and other non-consensual sexual misconduct offenses. The provision would also repeal section 125 of title 10, United States Code (Article 125 of the UCMJ), the offense of sodomy. The House bill contained no similar provision. The House recedes with an amendment that would delete the repeal of section 125 of title 10, United States Code (Article 125 of the UCMJ).

But regarding the dangerous provisions in sections 1031 and 1032, the Senate bill won out.

According to the conference report:

The House bill contained a provision (sec. 1034) that would affirm that the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces.

The Senate amendment contained a provision (sec. 1031) that would affirm the authority of the Armed Forces of the United States to detain certain covered persons pursuant to the Authorization for Use of Military Force (Public Law 107–40). The provision would not affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

The House recedes.

The original language in S.1867 is thus retained verbatim in the new version of the NDAA.

And regarding section 1032, the conference report says:

The Senate amendment contained a provision (sec. 1032) that would require military

custody for foreign al-Qaeda terrorists who are captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40), subject to a national security waiver. Under the provision, the President would have broad authority to issue implementation procedures, including but not limited to deciding who makes a determination of coverage, how the determination is made, and when it is made.

The House bill contained no similar provision.

The House recedes with an amendment providing that nothing in this provision shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody. The law enforcement and national security tools that would not be affected in any way by this provision include, but would not be limited to, Grand Jury subpoenas, national security letters, and actions pursuant to the Foreign Intelligence Surveillance Act (Public Law 95–511). The amendment would also authorize the President, rather than the Secretary of Defense, to waive the requirements of the provision.

The conferees note that while section 1021 of this bill would apply to "al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners," this section would apply to "al Qaeda or an associated force that acts in coordination with or pursuant to the direction of al Qaeda." The conferees agree that while the Taliban is covered by section 1021, it is not covered by this section.

(It should be noted that the original sections 1031 and 1032 are numbered 1021 and 1022 in the new bill.)

So, the main thing that is different about the new version of the NDAA is the insertion of the following paragraph between "Implementation Procedures" and "Effective Date"

(d) AUTHORITIES. – Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.

There are only two other changes. Under (a)(4) "Waiver for National Security," instead of the secretary of defense submitting a wavier to Congress it is the president. And under (c)(2)(C), there is an inconsequential change in wording. An "interrogation session" is now called just an "interrogation."

I rarely agree with Democratic members of the House of Representatives, but Rep. Alcee Hastings from my state of Florida, during debate in the House over the conference report, gets it right it:

This legislation establishes an authority for open-ended war anywhere in the world and against anyone. It commits us to seeing a "terrorist" in anyone who ever criticizes the United States in any country, including this one. The lack of definitions as to what constitutes "substantial support" and "associated forces" of al Qaeda and the Taliban mean that anyone could be accused of terrorism.

While this measure includes an exemption for United States citizens, it does not protect them from indefinite detention. In one fell swoop, we have set up a situation where American citizens could have their Fourth, Fifth, Sixth, Seventh, and Eighth Amendment rights violated on mere suspicions.

We won’t defeat terrorism by using the military to lock up innocent people for the rest of their lives on the mere suspicion of wrongdoing. We will not defeat terrorism by claiming the entire world as a battlefield. And we will not defeat terrorism by replacing our rule of law with reckless, uncontrolled, and unaccountable powers.

Likewise, here are the comments of consistent war opponent Rep. Dennis Kucinich:

Mr. Speaker, this bill authorizes permanent warfare anywhere in the world. It gives the President unchecked power to pursue war. It diminishes the role of this Congress.

This legislation authorizes the military to indefinitely detain individuals without charge or trial, including the detention of U.S. citizens on U.S. soil.

In short, what this bill does is it takes a wrecking ball to the United States Constitution and gives enormous power to the government or the State.

In his article, "Three Myths about the Detention Bill," civil libertarian par excellence Glenn Greenwald concludes:

In sum, there is simply no question that this bill codifies indefinite detention without trial (Myth 1). There is no question that it significantly expands the statutory definitions of the War on Terror and those who can be targeted as part of it (Myth 2). The issue of application to U.S. citizens (Myth 3) is purposely muddled – that’s why Feinstein’s amendments were rejected – and there is consequently no doubt this bill can and will be used by the U.S. Government (under this President or a future one) to bolster its argument that it is empowered to indefinitely detention even U.S. citizens without a trial.

But as correct and necessary as they are, the objections of civil libertarians regarding the indefinite detention of American citizens that the NDAA codifies, are not the real problem with the bill. Much more insidious is the bill itself and the $669 billion it allocates for "defense" spending.

In the "Constitutional Authority Statement" that accompanies H.R.1540, the chairman of the House Armed Services Committee, Buck McKeon (R-CA), has the audacity to say:

Congress has the power to enact this legislation pursuant to the following:

The constitutional authority on which this bill rests is the power of Congress to "provide for the common defense," "raise and support armies," and "provide and maintain a navy," as enumerated in Article I, Section 8 of the United States Constitution.

The U.S. military is used to provide disaster relief, dispense humanitarian aid, supply peacekeepers, enforce UN resolutions, launch preemptive strikes, nation build, spread goodwill, change regimes, eradicate drugs, rebuild infrastructure, contain communism, open markets, keep oil pipelines flowing, revive public services, establish schools, train foreign armies, invade foreign countries, occupy foreign countries, spread democracy, kill tens of thousands of people that were no threat to the United States, and secure the borders, guard the shores, patrol the coasts, enforce no-fly zones in the skies, and otherwise defend other countries.

I doubt that the Framers of the Constitution envisioned any of these things when they said: "provide for the common defense," "raise and support armies," and "provide and maintain a navy." The purpose of the military has been perverted beyond all recognition. Because the military spends more for offense than defense, that the defense budget is actually for defense is clearly a myth.

Another myth is that defense spending keeps us safe. The United States spends more on defense than the rest of the world combined. It maintains an empire of over 1,000 foreign military bases and hundreds of thousands of troops in 150 countries and territories around the globe. The United States is the policeman, fireman, social worker, security guard, mediator, and babysitter of the world. It has "entangling alliances" with many countries that require it to go to war and expend blood and treasure in defense of other nations. But as Congressman Ron Paul, speaking recently on Face the Nation, maintained: "Those troops overseas aggravate our enemies, motivate our enemies. I think it’s a danger to national defense, and we can save a lot of money cutting out the military expenditures that contribute nothing to our defense."

Yet another myth about the defense budget is that it is the only thing spent on defense. As economic historian Robert Higgs has shown, real defense spending is actually about $1 trillion.

Still another myth is that the defense budget includes spending on wars in Iraq and Afghanistan. Here is a list of U.S. spending on these foreign wars through fiscal year 2010 that was in addition to the defense budget:

FY2001 Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorist Attacks on the United States, P.L. 107-38 9/18/01, $13.9 billion
FY2002 Department of Defense and Emergency Terrorism Response Act, P.L. 107-117, 1/10/02, $3.4 billion
FY2002 Emergency Supplemental, P.L. 107-206, 8/2/02, $14.1 billion
FY2002 Regular Foreign Operations, P.L. 107-115, 1/10/02, $0.2 billion
FY2003 Consolidated Appropriations, P.L. 108-7, 2/20/03, $10.4 billion
FY2003 Emergency Supplemental, P.L. 108-11, 4/16/03, $66.0 billion
FY2003 DOD Appropriations, P.L. 107-248, 10/23/02, $7.1 billion
FY2004 Emergency Supplemental, P.L. 108-106, 11/6/03, $86.1 billion
FY2004 Foreign Operations Appropriations, P.L. 108-199, 1/23/04, $0.5 billion
FY2005 DOD Appropriations Act, P.L. 108-287, 8/5/04, $27.8 billion
FY2005 Consolidated Appropriations, P.L. 108-447, 12/8/04, $1.0 billion
FY2005 Supplemental Appropriations, P.L. 109-13, 5/11/05, $79.0 billion
FY2006 Interior & Related Agencies Appropriations, P.L. 109-54, 8/2/05, $0.2 billion
FY2006 Foreign Operations Appropriations, P.L. 109-102, 11/14/05, 1.0 billion
FY2006 Science, State, & Related Agencies Appropriations Act, P.L. 109-108, 11/22/05, $0.1 billion
FY2006 Military Quality of Life & Veterans Affairs, P.L. 109-114 11/30/05, $0.4 billion
FY2006 DOD Appropriations Act, P.L. 109-148 12/30/05, $50.8 billion
FY2006 Emergency Supplemental, P.L. 109-234 6/15/06, $69.2
FY2007 DOD Appropriations Act, P.L. 109-289 9/29/06, $70.5 billion
FY2007 Continuing Resolution, P.L. 110-5, 2/15/07, $1.8 billion
FY2007 Supplemental, P.L. 110-28, 5/25/07, $98.7 billion
FY2008 Continuing Resolution, P.L. 110-92 9/29/07, $5.2 billion
FY2008 DOD Appropriations Act, P.L. 110-116, 11/13/07, $11.6 billion
FY2008 Consolidated Appropriations Act, P.L. 110-161, 12/26/07, $73.2 billion
FY2008 Supplemental Appropriations Act, P.L. 110-252, 6/30/08, $163.2 billion
FY2009 Continuing Appropriations Act, P.L. 110-329, 9/30/08, $4.0 billion
FY2009 Omnibus Appropriations Act, P.L. 111-8, 3/11/09, $1.1 billion
FY2009 Supplemental Appropriations Act, P.L. 111-32, 6/24/09, $82.5 billion
FY2010 Consolidated Appropriations Act, P.L. 111-117, 12/16/09, $8.2 billion
FY2010 DOD Appropriations Act, Title IX, P.L. 111-118, 12/19/09, $127.3 billion
FY2010 Supplemental, P.L. 111-212, 7/27/10, $34.2 billion

The most insidious myth about the defense budget is that it is tool of congressmen to enhance their chances for reelection while lining the pockets of defense contractors. In his book Washington Rules: America’s Path to Permanent War, retired U.S. Army colonel Andrew Bacevich explains:

Each year the Pentagon expends hundreds of billions of dollars to raise and support U.S. military forces. This money lubricates American politics, filling campaign coffers and providing a source of largesse – jobs and contracts – for distribution to constituents. It provides lucrative "second careers" for retired U.S. military officers hired by weapons manufacturers or by consulting firms appropriately known as "Beltway Bandits" (p. 228).

Two of Old Right journalist John T. Flynn’s eight points he considers to be the main marks of the fascist State are:

Militarism is a mainstay of government spending
Military spending has imperialist aims

The U.S. economic system is not based on free market capitalism; it is based on that most insidious form of crony capitalism known as military fascism.

The NDAA, sans indefinite detention, or in whatever form it is found, is a bill for continued militarism, imperialism, and empire, and a terrible waste of the taxpayers’ money.
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Laurence M. Vance [send him mail] writes from central Florida. He is the author of Christianity and War and Other Essays Against the Warfare State, The Revolution that Wasn't, and Rethinking the Good War. His latest book is The Quatercentenary of the King James Bible. Visit his website.

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