The Truth About the NDAA

Posted on December 20, 2011 at 11:57 am by Bob Cesca

Benjamin Wittes, who has been on top of the NDAA news for a while now, broke down the reality of the law and, specifically, what it does and doesn’t do.

He also dispels some myths in plain English (Benjamin is a legal expert, a Senior Fellow, Governance Studies, The Brookings Institution and Contributing Editor, The Atlantic Monthly).

Mainly:

–Does the NDAA expand the government’s detention authority?

Nope.

–Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either.

–Does it mandate military detention of terrorist suspects?

Not really, though both supporters and critics seem quite sure that it does.

–Does it prevent the closure of the detention facility at Guantanamo Bay?

Yes. The NDAA does three things that make it impossible, at least during fiscal year 2012, for President Obama to fulfill his promise to close the detention facility at Guantanamo Bay.

–Does it prevent civilian criminal trials of terrorism suspects?

Yes and no.

–Does it repeal the Bill of Rights?

No federal statute can repeal the Bill of Rights. To the extent any provision of the NDAA is found to conflict with any provision of the Bill of Rights, it will not survive constitutional scrutiny.

It really is required reading. What you’ll gather from it is exactly what Chez and I were talking about on the podcast: the bill isn’t good, but it’s not the nightmare some on the left are making it out to be.

(Via @Shoq)

Print Friendly
This entry was posted in Terrorism and tagged , , . Bookmark the permalink.
  • http://www.facebook.com/rycarson Ryan Carson

    Regarding the nuts and bolts of the law, I agree that it isn’t the danger most of the knee-jerkers profess it to be. However, there is a critique here for both President Obama and our political system.

    If you believe that the courts should and do have the near exclusive authority to determine that a federal statute conflicts with the constitution, then Mr. Wittes’ comment that “it will not survive constitutional scrutiny,” will comfort you.

    However, if you believe that each branch of the federal government has an independent duty to uphold the constitution, and thus not take action or enact policy that contradicts the constitution, then the bill is more troubling.

    The critique is that the President seems very comfortable with some of the policies enacted under the Bush regime vis a vis executive authority, so long as they are subsequently ratified by the Congress. As a matter of political reality and political history, this is how these things are done. But a change agent, such that the President can ever be one, should be actively seeking to rebalance the branches.

    • http://www.osborneink.com OsborneInk

      I think I’m going to scream.

      “The critique is that the President seems very comfortable with some of the policies enacted under the Bush regime vis a vis executive authority, so long as they are subsequently ratified by the Congress”

      That isn’t a critique, it’s a caricature. It certainly doesn’t describe what has happened with NDAA.

      • http://twitter.com/OUTRaged AZskye

        Thank you.

      • JMAshby

        I think I’m going to scream.

        You and me both.

  • http://twitter.com/OUTRaged AZskye

    I can only guess at the author’s true beliefs about our constitutional freedoms, his fine credentials aside. I cannot accept this bill in any shape or form, as it shreds both our rights to habeus corpus and the Posse Commitatis act. We have literally handed our rights over in the name of fear – fear of WMD, flying terrorists, and rampant xenophobia. The CEO of Lowe’s is a perfect example of this pervasive and egregious fear as shown by his withdrawal of advertising from the TLC show American Muslim. Our grandparents’ generation would NEVER have allowed this bill outside of declared, full frontal warfare, and then demanded it be removed when war was over. I cannot accept this signal of untenable power for the feds, and will fight this unconstitutional law as long as needed.

    • JMAshby

      What? Have you read anything presented to you on it that actually examines the language of the bill?

      Habeus Corpus is not going away. And Posse Commitatis?

      Jesus fuck

      Good luck finding anything unconstitutional in there.

    • http://www.osborneink.com OsborneInk

      IT IS NOT IMPORTANT WHETHER EMMANUEL GOLDSTEIN IS REAL. IT IS ONLY IMPORTANT THAT WE HATE AND FEAR HIM FOR TWO MINUTES A DAY.

  • rgbyref

    Your child-like faith in the willingness of our current Supreme Court to protect the rights of American (human) citizens who make less than a million dollars a year is…inspiring.

    • http://www.politicalruminations.com/ nicole

      huh?

      Your willingness to believe that part of the left which has now circled around and met itself on the far right, and having bought in to the shrieking bullshit re the NDAA being circulated by the opportunists and racists, is nothing short of …….. ill conceived.

      • rgbyref

        Not really. Just pessimistic.

  • Steve Shimer

    This is insufficient to say the least. And it says the least. “Nope”? Really? Nope? Might as well say it doesn’t because I say it doesn’t. Please explain what people are misperceiving, if indeed they are.
    ====================================================

    “–Does the NDAA authorize the indefinite detention of citizens?

    No, though it does not foreclose the possibility either.”
    ====================================================
    Again. Really? Well then what does it say? Why do people say that it does? Give us a little morsel. Maybe we can understand.
    ====================================================
    –Does it mandate military detention of terrorist suspects?

    Not really, though both supporters and critics seem quite sure that it does.

    One of the most acceeded to right wing points is that left leaning judges are activist and right wing judges are strict constructionists. Bush V Gore be damned! Citizens United be damned.

    If these both sides think it does this, isin’t it possible that the sitting right wing activist judges will think so also?

  • ethel1234

    If theres nothing wrong with it, why did 7 Senators vote against it?