Defense Act Is Unconstitutional

Each year, Congress authorizes the budget of the Department of Defense through a National Defense Authorization Act (NDAA). The NDAA of 2012, however, is unlike any previous ones. This year's legislation contains highly controversial provisions that empower the Armed Forces to engage in civilian law enforcement and to selectively suspend due process and habeas corpus, as well as other rights guaranteed by the 5th and 6th Amendments to the U.S. Constitution, for terror suspects apprehended on U.S. soil. The final version of the bill passed the House on December 14, the Senate the following day. This pernicious law poses one of the greatest threats to civil liberties in our nation's history. Under Section 1021 of the NDAA, foreign nationals who are alleged to have committed or merely "suspected" of sympathizing with or providing any level of support to groups the U.S. designates as terrorist organization or an affiliate or associated force may be imprisoned without charge or trial "until the end of hostilities." The law affirms the executive branch's authority granted under the 2001 Authorization for Use of Military Force (AUMF) and broadens the definition and scope of "covered persons." But because the "war on terror" is a war on a tactic, not on a state, it has no parameters or timetable. Consequently, this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability – potentially even demonstrators and protesters exercising their First Amendment rights. Regardless of whether or not this law is interpreted as applying to U.S. persons, by specifically targeting foreign nationals, the NDAA violates the "equal protection" clause of the 14th Amendment, which guarantees that all people be treated the same under the law. Therefore, any way you slice it, this law is unconstitutional. As difficult as it might be to have any faith left in the Congress, there is hope on the horizon for overturning at least the portion of the law that threatens U.S. persons. The Due Process Guarantee Act of 2011, H.R. 3702, authored by Rep. John Garamendi (D-CA) and Martin Heinrich (D- NM) and currently co-sponsored by 32 House members, including the ranking members of the Armed Services, Foreign Affairs, and Judiciary committees, clarifies existing U.S. law and states unequivocally that the government cannot indefinitely detain American citizens or lawful U.S. residents. It ensures that U.S. citizens and permanent residents on American soil are protected. The bill amends the Non-Detention Act of 1971, clarifying that a congressional authorization for the use of military force – such as that in the NDAA which included the detainee provisions – does not authorize the indefinite detention without charge or trial of U.S. citizens apprehended on U.S. soil. H.R. 3702 is companion legislation to Senator Dianne Feinstein's Due Process Guarantee Act of 2011, S. 2003. Since 2001, the Patriot Act, the AUMF, and now the National Defense Authorization Act of 2012 have eroded of many of our most valued constitutional rights. Our nation is moving away from government "of the people, by the people, for the people" and toward a totalitarian state. The late historian, Howard Zinn observed, "Terrorism has replaced Communism as the rationale for the militarization of the country [America], for military adventures abroad, and for the suppression of civil liberties at home. It serves the same purpose, serving to create hysteria." It is up to the American people to stop this fear-mongering and this unfettered growth of the military industrial complex. How? Americans can begin by actively dissenting against laws that violate their Constitution and their conscience. Dr. Zinn believed very strongly that "dissent is the highest form of patriotism.