Will National Defense Authorization Lead to Indefinite Imprisonment of Americans?

Telling the Truth About NDAA?

There’s a story circulating on the Internet that was posted last Wednesday at ACLU.org by Chris Anders, in which it was put forth that the latest NDAA includes provisions that would allegedly make “the battlefield” your back yard, and make American Citizens subject to indefinite imprisonment and subject to military authorities.  Of course, with the state of things in this country, it’s not entirely out of character for the folks in Washington DC to view Americans as an enemy, but I also know that the ACLU has its own axes to grind, and part of the trouble with Mr. Anders’ article is that it contains references but no links to the specific provisions of law he says are problematic.  Worse, in publishing the article, rather than provide links to the actual legislative language, or links to the proposed [Udall]amendment Mr. Anders seems to be advocating, the links for the Amendment take readers to an activism page aiming to lobby Congress.

This is by itself a dishonest tactic, and I have some serious concerns with somebody at the ACLU using the occasion of this bill to promote fear-mongering notions about what this bill actually provides.   Apparently, I’m not the only one who has noticed that the ACLU’s Chris Anders seems to be jumping the shark with his claims.  The first thing that made me suspicious about the article is that Anders never quotes the actual legislative language in question.  Why not let readers see the text and decide for themselves?  Instead, what you get from Mr. Anders is a string of claims about the effects of the law, rather than any specific legal language to support his assertions.  For instance, Anders writes:

“The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world.”

Notice that Anders includes a link on the words “the power” but rather than taking you to the text of the bill, or some description of “the power,” instead, the link directs you to an advocacy page where you can fill out a form and petition on behalf of the Udall Amendment.   There are eleven hyperlinks in the body of the article, and of these eleven, nine take you to this same destination.  In fact, rather than pointing you to the specific language of the Udall Amendment, the words “Udall Amendment” are linked three times to the ACLU petition page.  That’s simply dishonest.  Readers have an expectation that when they see a word or name that includes a hyperlink, it will take them to some source or related information relevant to the linked text.  Anders certainly didn’t seem to want you to see the actual Udall Amendment, which now leads me to wonder why.  Naturally, I went out and found the Udall Amendment,  and have linked it as Anders should have done.

The real problem with Anders’ article is that it does a lot of huffing and puffing, and in breathless terms describes provisions in a bill that by his characterization will lead to American citizens being arrested by US military forces in the back yards and leading to indefinite incarceration without charges, bail, or due process of law.  That would be a terrible and astonishing thing for the Congress to do under any circumstance, and I would loudly oppose it if that were the case here.  In point of fact, I’d be calling for Americans to join me in opposition, but that’s not what I’m finding.  Instead, what I’m finding actually conflicts with Anders’ characterization, and suggest dishonesty on his part.  Again, rather than try to characterize the provisions of Senate Bill 1867, I went out and found it for you so that you can make your own decisions based on its actual text.  The allegedly tyrannical provisions are sections 1031 and 1032.

The text of these provisions is as follows:


    (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) 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).


    (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.
      (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.

A fair reading of these sections highlights a couple of things to which we should pay close attention in examination of Mr. Anders’ claims about the bill.  First, the language included seems to specifically exempt US Citizens and lawful Resident Aliens from application of this provision.  Second, contrary to his claims in his introductory paragraph, it is hard to see how this bill would directly or even indirectly violate the constitutional civil liberties of American citizens and resident aliens here in the United States.  Mr. Anders claimed:

“The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield — even people in the United States itself.”

I think this is disingenuous at best, and outright dishonest and inflammatory at worst.  He’s clearly trying to incite a fearful response based on suppositions I don’t think a fair reading of these provisions explicitly or implicitly would enact.  Of course, I knew that this might well be the case when I saw that PrisonPlanet.com was covering this story, because that site is largely authored by real conspiracy kooks.  Sure, they find some interesting material, but as in this case, I think their willingness to stretch the meaning and clear intent of things leads to a sort of self-destructive, self-defeating exaggeration and an atmosphere of bombastic claims most of which turn out to be overblown or entirely bogus.  Frankly, once Alex Jones is involved, a story loses much of the credibility to which we might otherwise attach, because Jones has a long history of turning loosely connected events and circumstances together in some of the most convoluted conspiratorial garbage on the Internet.  To each his own, but really, once this loon went down the whole “controlled demolition” rabbit-hole with the so-called “9/11 Truthers,” that was the end of his credibility, and with him, the credibility of anything posted on his sites.

The Senate’s bill may have some problems, but Anders’ characterization is dubious at best.  I think it’s clear that he and the ACLU are trying to create a lot of smoke where there is no fire, and I think the Udall Amendment is intended to place mandates on executive branch actions that may or may not be in the best interests of the United States, but could be understood to hamper this or any future President in acting as the Commander in Chief.  Whether the Udall Amendment is worthwhile is itself a matter of some controversy, but what is clear to me is that the ACLU is misusing this article to drum up a political issue without providing any substantive arguments.  I’ve yet to see how any of Anders’ claims are substantiated in the text of sections 1031 or 1032, as posted above, and these provisions certainly don’t match the claims.  If this is the best case the ACLU can make against these provisions, it’s time to admit that the ACLU has other motives with Anders’ article.  The method of presentation, the lack of citations, and the disingenuous appraisal suggests strongly that the ACLU is grasping at straws.

As much as anybody, I don’t trust our government, particularly where the liberties of the American people are concerned, but this story seems designed to mislead the American people, or to incite fear among them.  This could be a serious issue, but the version of the bill now posted indicates none of the dangers that Anders implies.  It’s dangerous to lead the American people astray, and in this case, I think it’s clear that Anders is doing just that.

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7 Responses to Will National Defense Authorization Lead to Indefinite Imprisonment of Americans?

  1. eyetooth tom says:

    Appears those of us who comment are thinking long an hard on this excellent article. Know I am. Short concise comment is hard to do. Plus this old "Unit" is still working…and getting ready to go in. Hopefully, I'll come up with some input later.

  2. Mark says:

    If what you say is true then there is no need for this Bill. Why does it even exist? Something smells.

  3. eyetooth tom says:

    Lots of laws are pretty vague. Often it's the rules formulated by some agency that determines how it is implemented by the enforcers, executive branch. Say AOD…Agency of Detention.
    And you got to determine "what is is." What is a citizen vs a civilian?
    Over a couple of decades I've read some books and articles proposing the dissolution of the nation-state.
    Only surmising now…should dissolution of the nation-state and some other form of government become the way, Third Way or NWO, whatever it may be called. Perhaps citizen becomes obsolete…replaced with just a civilian of the world. Sure maybe citizen to our way of thinking, but civilian to enforcers of whatever order should it be called or be.
    Just a thought…maybe don't think too well. I won't even call it my two cents…just got letter yesterday that my life savings in CD is dropping to one tenth of one percent in interest earned starting Dec. So just giving my two tenths of one percent.

  4. Lou Lang says:

    "Although President Barack Obama had originally insisted that he would veto the National Defense Authorization Act for Fiscal Year 2013, Senate Armed Services Committee Chairman Carl Levin revealed recently that the bill in its current wording was drafted after the current administration asked for changes."

    (This Act allows the Government to detain American citizens without trial….indefinitely!)

    So I have two questions:
    Why aren't the liberals upset about Obama taking away our constitutional rights, but so upset about George Bush taking them away?

    And why did the conservatives get so mad about Obama being a "Dictator" for health care mandates and ruling with executive orders, but not mad about Obama taking away their constitutional rights?

    Which leads me to my next question:
    What the hell is going on here? No, seriously, what the ****?

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