Nothing New in the National Defense Authorization Act

The National Defense Authorization Act (HR 1540) was signed on the last day of 2011. The bill, now law, has been in the non-mainstream news lately because of several clauses that “allow” the indefinite military detention of U.S. citizens without trial.

As always, discussion and skepticism about the claimed authority to cage human beings forever, without a stated reason, and without any recourse is extremely healthy and I applaud anyone who brings the topic up at all[1].

That said, the belief that this power hasn’t always existed under the Constitution is patently incorrect. The indefinite detention of the seditious without trial is as old as “the republic” itself. A typical American lifetime has seen multiple instances of indefinite political mass-detention cloaked in the claim of national defense; ours is unlikely to be any different.

The root of the problem isn’t that the current government is becoming tyrannical, it is already demonstrably so. The root is that the government has always been tyrannical. It has always used prisons and the military/police to kill or cage anyone[2], foreign or domestic, who challenges the existing power structure in a meaningful way. What we’re currently witnessing is simply the increase in numbers of domestic subjects who recognize, to some degree, the nature of the existing structures and who are compelled to challenge them.

The NDAA, then, is just a reminder that you too are subject to indefinite, trial-free detention; or indefinite military detention; or trial-free military detention. You will not, however, be held indefinitely in military detention without a trial, they promise.

Besides not being worth the paper it’s written on, the signing statement will not protect anyone from disappearing whom the government deems to be a threat to “business as usual.” Even the party hacks for the democrats concede that point. Their focus is on the fact that the NDAA claims not to expand current executive power . . . aaand that the executive can currently do whatever it wants to anyone in the world. History, both mainstream and revisionist, reminds us in no uncertain terms that government has always claimed and exercised this power.

Simplistic, though thoroughly sufficent, evidence is offered by the Injustice Everywhere’s worst police misconduct of the year poll[3].
Here you will see a sampling of the thousands of instances of government killing, detaining, and caging human beings without trial.

You could argue that the killers aren’t from the military–not even the federal government in most cases. I would like you to reexamine the trees and keep an eye out for the forest. Putting aside uniform colors and the jurisdictional questions of whose cages/bullets belong to whom, your rulers will not let you disobey in any meaningful way. Even movements as mainstream as the Tea Party and Occupy Wall Street are threatening enough to provoke fear-mongering about domestic terrorists and reminders, like the NDAA, of the price of dissent.

To sum up: the NDAA is a reiteration of the relationship between the subjects and the rulers. The rulers can beat, cage and kill anyone they want at will. There is no systemic recourse to speak of. There are no legal nor practical limits to their power over you within the nation-state framework. Until this observable fact is . . . observed by a critical mass of the ruled, we will continue to exist and live our lives at the pleasure of the power structure.

Update: Glenn Greenwald and Mike Adams do wonkier and better written analyses of NDAA but come to similar conclusions.

  1. [1] I’m definitely not trying to use the “This has always been a problem, so shut up,” technique. Rather, I’m going for, “let’s talk about how f’d up it is that this has always been and continues to be the case.
  2. [2] It will also, without hesitation, kill or cage anyone in the vicinity or of the same race or religion.
  3. [3] I originally misattributed the poll to, another great, illuminating website. Thanks Ademo for the correction
  1. Can’t say I agree here Jad.

    The use of the military as domestic police force is completely new and the nearest you might come to saying it has precedent is the Kent State Massacre but that wasn’t done by statutory authority was it?

    Greenwald doesn’t know his ass from a whale’s blowhole when it comes to the US Constitution and the jurisprudence thereunder, so I wouldn’t be quick to cite him even though others are doing so. Of course some of those others are notable journalists or opinion spouters, but I would stand back and let them embarrass themselves by citing to Greenwald, rather than joining them because they seem to have more gravitas or whatever.

    A simple and (ought to be) obvious point is that NDAA (or NADA as I sarcastically label it) wouldn’t even be necessary if it were already legal, legitimate, and constitutionally permissible.

    Pointing to the Alien & Sedition Act doesn’t really support your argument. I’m curious as to why you cite it.

    • Fair enough. Here are my thoughts. If gunmen exit their APC or zip down a rope from a helicopter to kill or capture you, it doesn’t matter what color their clothes are. Police are the domestic military and have increasingly adopted the tactics and weapons of their foreign counterparts. If NDAA makes soldiers/marines into police or if police arm themselves like soldiers makes no difference to the political dissidents that get disappeared. I concede that domestic policing would be able to stifle alot more dissent with the sudden addition of combat troops, but I feel confident that level of dissent would bring troops NDAA or no.

      My citing of GG was based on his conclusion that the president is already claiming the powers of indefinite detention/assassination of citizens based on the 2001 AUMF.

      I was pointing to the alien and sedition act as the first(?) post-constitutional instance of the government stifling domestic dissent in the name of protecting against a foreign threat.

      • I think what you’re missing is that from a legal framework perspective, there’s a big difference between something already being done but not codified, and something codified.

        The codification formalizes the process and makes it a lot tougher to protest the process. When it’s not codified there is room to argue that the protest is legitimate. The codification now makes protest illegitimate ON ITS FACE.

        You’re talking about de facto and I’m talking about de jure and there’s a big difference between the two if, for example, I’m defending a protester who has been arrested for carrying a placard that criticizes Obama. Prior to the codification of NDAA and like legislation, we could argue about the question of threat — legitimate threat — to national security in protesting Obama’s acts. NDAA and similar legislation recently enacted make it very hard to gain a juror’s or judge’s ear on that issue.

        The 2001 AUMF isn’t the basis for the POTUS claiming this right. The basis goes back to Watergate and the desire to have the Unified Executive. The 2001 AUMF is merely a stepping stone between Watergate and NDAA.

        The 2001 AUMF is also a sidestep to the War Powers question under which only the Congress has the power to declare war. If Greenwald had half the Constitutional law chops he claims, he’d know this and wouldn’t waste anyone’s time whinging about the 2001 AUMF. But as I said, he’s a naive turd where the Constitution is concerned, despite his claim to be an expert on the Constitution and the jurisprudence surrounding it.

        I get your point now about the Alien & Sedition Act but I’m not sure it really has much bearing on what’s happening now. What’s happening now has more to do with the real absence of legitimate Constitutional behavior by any of the 3 branches, and their joint scrambling to excuse themselves for being bulwarks between the criminals running the Fed Govt and the citizenry being harmed by the criminal behavior. The Alien & Sedition Act was weird paranoia; the current drift including NDAA, the Patriot Act parts I and II, the John Defense Budget Authorization Act, the FISA courts legislative amendments, etc. is real ass-covering by a mass of thieves. It fits together with the bailouts being orchestrated to help the criminals rather than the injured citizens.

        Greenwald is really a very bad lead to follow because one of these two possibilities must hold true:

        1) he’s ridiculously naive about everything he claims to know at an expert level; or

        2) he’s not at all naive, but enjoys lying with a bald naive face about the things happening now.

        I submit that (1) is most likely, based on the many things of his I’ve read. He’s politically very naive — essentially a Good Government Liberal who claims left-libertarian views only to the extent they cushion him from anti-gay sentiments (i.e. he has experienced enough anti-gay sentiment to harbor a smidgen of skepticism about the goodness of government — but only where government’s treatment of gays and lesbians is concerned).

        He’s really inept when it comes to parsing movements of federal poewr. And I mean REALLY inept. He sits back and watches public opinion, and then jumps on board the Popularity Train. He can’t offer wisdom or insight, because he lacks both.

  2. I just wanted to point out that the poll and related videos were complied by http://injusticeeverywhere an amazing website on police misconduct stats. The poll was not run by, merely posted there.


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