S.1867, The National Defense Authorization Act: US Senate to Decide on Military Power that Undermines Due Process Laws

The war on terrorism is about to strike the United States Constitution even harder. As if the Patriot Act didn't already kill the Fourth Amendment, the Fifth Amendment will soon be dead as well if Congress successfully passes the National Defense Authorization Act.

The bill would give the military the power to arrest anyone they suspect to be a terrorist, and it would rob those people of due process laws that force the government to prove their guilt. As you can see, this is a very dangerous proposition when you consider the broad definition of terrorist documents like Missouri's MIAC created.

“The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself,” writes Chris Anders of the ACLU Washington Legislative Office.

Under the ‘worldwide indefinite detention without charge or trial’ provision of S.1867, the National Defense Authorization Act bill, which is set to be up for a vote on the Senate floor Monday, the legislation will “basically say in law for the first time that the homeland is part of the battlefield,” said Sen. Lindsey Graham (R-S.C.), who supports the bill.

The bill was drafted in secret by Senators Carl Levin (D-Mich.) and John McCain (R-Ariz.), before being passed in a closed-door committee meeting without any kind of hearing. The language appears in sections 1031 and 1032 of the NDAA bill.

“I would also point out that these provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect,” Colorado Senator Mark Udall said in a speech last week. One section of these provisions, section 1031, would be interpreted as allowing the military to capture and indefinitely detain American citizens on U.S. soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the U.S. military to perform law enforcement functions on American soil. That alone should alarm my colleagues on both sides of the aisle, but there are other problems with these provisions that must be resolved.”


This means Americans could be declared domestic terrorists and thrown in a military brig with no recourse whatsoever. Given that the Department of Homeland Security has characterized behavior such as buying gold, owning guns, using a watch or binoculars, donating to charity, using the telephone or email to find information, using cash, and all manner of mundane behaviors as potential indicators of domestic terrorism, such a provision would be wide open to abuse.

Of course, when you study history, the United States has a horrible record of robbing its citizens of due process laws. Abraham Lincoln jailed his political enemies, those who simply criticized Lincoln, during the Civil War. We know during World War II Japanese Americans were hauled of to internment camps without probable cause, unless you call skin color probable cause.

Obviously, the Senate is looking to make this the law of the land.