Article submitted by guest contributor Ezra Van Auken.
On the last day of 2011, President Obama signed into law a massive military budget for the 2012 fiscal year. He also approved new provisions that gave power to the military branch. Although the National Defense Authorization Act (NDAA) has hardly received mainstream attention for its lengthy spending receipts, after the 2012 NDAA was passed, it seemed the infamous acronym was catching on quickly.
Inside 2012’s NDAA legislation were two new provisions: 1021 and 1022, both of which are currently valid. The first, provision 1021, hands and affirms the President’s authority to detain American citizens on the grounds that the acting citizens had been involved with belligerent acts against US interests. While that legislative move alone sounds simple and reasonable, it only gets worse – as if civil libertarian-backers haven’t already become disgruntled.
In addition to the President being able to detain any American on the assumption that they’re involved with belligerent acts, he assumed the power to detain the citizen without trial.
Overlooking habeas corpus, the military branch can detain Americans without any due process, and only after the end of hostilities does the government have to allow a trial. And, provision 1022 doesn’t get much better.
Provision 1022 states that the right to detain a person in military custody does not extend to US citizens, and that requirement to detain a person in custody under the section doesn’t extend to lawful residents of the US, except when permitted by the Constitution. In other words, the administration isn’t required to keep a citizen in custody, but it doesn’t have to release the detained citizen either.
Those opposed to the NDAA, including civil libertarians and other Constitutional advocates, are calling Obama’s signing the first step into an unknown legal space of totalitarianism. Groups such as the American Civil Liberties Union (ACLU) and the Tenth Amendment Center (TAC) have called the move everything from “dangerous” and “illegal”, and have even said that policymakers dropped the ball, allowing the Executive branch to “kidnap” Americans.
Despite the controversy over the government power grab, President Obama didn’t hesitate to sign into law the 2014 NDAA, extending both of these provisions. The President signed the 2014 NDAA provisions into law without an ounce of indication that provisions 1021 and 1022 would be eliminated, debated or refined. Instead, Obama transferred attention to the reformation of Guantanamo Bay’s policies.
Admitting that secret detentions without trial cause harm to international relations, President Obama said the 2014 provisions regarding Gitmo are “an improvement over current law and [are] a welcome step toward closing the facility” while recognizing that Gitmo really isn’t close at all to being closed – something on which Obama campaigned heavily in 2008.
Overall, the administration acquires more workability and command with returning detainees to their native countries; however, it doesn’t change the ban for transferring detainees to American facilities. The likelihood of this process accelerating at all is grim, due to the loose connections with foreign countries such as Yemen. “The detention facility at Guantanamo continues to impose significant costs on the American people,” Obama concluded.
So, while the President unrolls his administration’s bread and circus for the minor Gitmo policy move, which likely won’t even play a productive role in streamlining the process of returning detainees to their home countries, the President remains quiet on other provisions that are showing significant costs on the American people – namely provisions 1021 and 1022 – policy changes that no one in the White House seems to want to address or even discuss.