NDAA ‘s Counterterrorism Provision Is Unconstitutional According to A Federal Judge


A Trojan Horse lurking in a defense bill..

It was a great day for the Constitution.

Bill S 1867 or the National Defense Authorization Act ignores the Constitution with the inclusion of the counterterrorism provision. One federal judge agreed in her ruling of May 16th.

The National Defense Authorization Act (Bill S 1867) was recently passed by Congress and signed by President Obama. There is one section in the bill which allows for the indefinite detention by the military of anyone who “substantially supported” terrorists or their “associated forces,” without defining what those terms mean. It includes U.S. citizens.

A government “sweep” could include many innocent people under these broad terms. Don’t think it won’t happen? It will.

My friend’s son was caught in a drug sweep. His crime was selling plastic bottles over the Internet, one of which found its way into a meth lab. Since he was innocent, his name and address were on the bottle’s label. He was on the front page of the local paper in handcuffs as he was being taken to the police station. It cost him $100,000 in legal fees before the overreaching prosecutor told him he would not be charged with any crime. In his case, he was entitled to protections under the constitution. What if he was not?

Under this counterterrorism provision, the military can arbitrarily detain a U.S. citizen without cause.

In a rare move, a federal judge ruled that the counterterrorism provision of the NDAA is unconstitutional. Federal judges almost never oppose congressional legislation. The language of NDAA is undefined and vague she said.

The judge issued an injunction against using the provision on behalf of a group of journalists and activists who had filed suit in March, claiming it would chill free speech.

A number of journalists, with standing in the court, said that it prevented them from interviewing subjects in the Middle East because the language in the bill is so vague that it might subject them to indefinite detention.

The free speech element is only one problem with a provision that deprives a citizen of their constitutional rights based on vague associations.

The counterterrorism provision has the potential for an alarming infringement on citizens rights  – it is a door that should not be opened. It was brought to you by Republicans and Democrats and the opposition comes from both sides. This legal case, however, was brought by the left.

Shockingly, the government could not answer the question – Would these plaintiffs be subject to indefinite detention?

The section under review –

Section 1021. This section prohibits providing substantial support for terrorist groups, but gives little definition of what that means. Environmental activists were also poised to join the suit if it expanded…

…The suit demands that Congress cut or reform this section of the law, which allows the U.S. military to indefinitely detain without charges anyone — including U.S. citizens — who may have “substantially supported” terrorists or their “associated forces,” without defining what those terms mean. President Obama signed the bill on Dec 31, 2011, with a signing statement saying that the law was redundant of powers already provided to the government under the 2001 Authorization for Use of Military Force (passed after 9/11), and that these powers would not be used against U.S. citizens. The next administration may decide differently, however…Read more: LA Times

The provision essentially strips citizens of their constitutional rights to habeas corpus, a speedy trial, a trial by jury, and so on, possibly for only having  innocent contact with a known or suspected terrorist, as in the case of a journalist.

It is hard to know what it will do because it is written in the vaguest of language. Congressmen claim it will only be used against terrorists. Clearly this judge disagrees and has ordered them to rewrite it with clarity.

The key and most convincing claim made by the plaintiffs was that the language in section 1021 is so vague that it could sweep up anyone. The law fails to define or specify what “associated forces” or the concept of “substantial support” actually mean.

Judge Forrest concluded –

At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021. Plaintiffs are therefore at risk of detention, of losing heir liberty, potentially for many years.

The government’s assertions become even more hellishly farcical. Forrest further observed:

“An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so. In the face of what could be indeterminate military detention, due process requires more.”

Most interestingly, the ACLU and many Conservatives agree on this issue but it took left wing organizations to bring the case to this point. Some of those opposed are the National Lawyers’ Guild [a communist front organization], Wikileaks, occupiers, and journalists. These are groups I rarely or never agree with, however, this issue has made for strange bedfellows.

Notes from the court testimony by a left wing advocate.

The following excerpt is from a piece by constitutional lawyer, a conservative, Kris Anne Hall –

…Senate Bill 1867, also known as the National Defense Authorization Act, is the means by which Congress funds the military and is therefore a “must pass bill.”  No politician wants to be the one who voted to defund the military, especially if you are a so-called conservative.

Those who would be disposed to usurp the Liberties of this land take these must pass bills and convert them into Trojan horses.  This particular Trojan horse puts the due process rights of American citizens in serious jeopardy through sections 1031 and 1032.

Sections 1031 and 1032 of this bill are completely unrelated to the funding of the military.  These sections, we are told, will ‘save us from terrorists’.

The plan is to remove the Constitutional right of habeas corpus and persons deemed to be terrorists will be detained indefinitely, out of the country. The built-in premise is that the right of habeas corpus is somehow a threat to national security. 

Who wouldn’t want to stop terrorists? Don’t we all want to be safe?  Aren’t terrorist the very demons we should be fighting today?  If you don’t support this bill you are a terrorist sympathizer. Am I a terrorist sympathizer simply because I believe that you shouldn’t have to circumvent the Constitution to do your job? Particularly considering the very job description these Congressmen swore to do was to “support and defend the Constitution.”

It is mindboggling that those with the power and responsibility to PROTECT LIBERTY are the very ones who will justify its destruction…. Keep reading…