2012 Defense Act Prompts Fear of Random Arrests of Americans

President Barack Obama’s recent approval of the National Defense Authorization Act (NDAA) has sparked a torrent of criticism over fears that new provisions in the bill allows for the arbitrary detention of U.S. citizens. One man is upset enough to have even filed a lawsuit against the president and the secretary of defense.

On Dec. 31, 2011, President Obama signed into law the NDAA, although he admitted to having "serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."

The NDAA, which has been in effect for the past 49 years, enters the 2012 year with new provisions creating contention in the political community. Specifically, the act's new provisions permit the indefinite detention of any "covered person." 

A "covered person," according to the NDAA is "a person who planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored those responsible for those attacks," or "a person who was a part of or substantially supported al-Qaida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

Although Obama has promised to practice moderation when interpreting the legislation, the bill has received a large amount of backlash from the political community. Some call the new revisions to the NDAA undemocratic and  others say gives the military too much power.

One of these "others" is Journalist Chris Hedges, who recently published an opinion piece in the newswire Truthdig entitled “Why I’m Suing Barack Obama.” Represented by attorneys Carl J. Mayer and Bruce I. Afran, Hedges is suing President Barack Obama and Secretary of Defense Leon Panetta, challenging the legality of the Authorization for Use of Military Force provision, found in the NDAA.

The Authorization for Use of Military Force enables the U.S. military to conduct anti-terrorism efforts in the United States. 

Hedges describes the act of as a "catastrophic blow to civil liberties."

Hedges argues that according to the provisions of the act, his past experiences as a journalist could possibly categorize him as being affiliated with terrorists, and therefore he could be subject to arrest.

"I have had dinner more times than I can count with people whom this country brands as terrorists. But that does not make me one," Hedges wrote.

Although Hedges does admit that his battle is quixotic, he says he is fighting to end corporate fascism in the United States.

"And I suspect [the Act] passed because the corporations, seeing the unrest in the streets, knowing that things are about to get much worse, worrying that the 'Occupy' movement will expand, do not trust the police to protect them. They want to be able to call in the Army," Hedges wrote.

Anthony D. Romero, executive director of democracy watchdog American Civil Liberties Union (ACLU), issued a statement in response to Obama’s signing of the bill, saying, "We are incredibly disappointed that President Obama signed this new law even though his administration had already claimed overly broad detention authority in court."

"Thankfully, we have three branches of government, and the final word belongs to the Supreme Court, which has yet to rule on the scope of detention authority," Romero added.

Some observers argue that those opposing the bill are formulating conspiracy theories, arguing that that the NDAA is merely an appropriations bill, reassessed every year and used to fund the U.S. military. Critics argue that America's close connections to the Middle East and war efforts make this year’s renewal of the bill more sensitive to the needs of the military.

Sebastian Gorka, Military Affairs Fellow at the Foundation for Defense of Democracies and professor of U.S. National Security at Georgetown, argues that the NDAA of 2012 "reflects the fact that we are at war."

"Targeting U.S. nationals that support foreign powers at war with the U.S. is not new, nor is detention for the duration of hostilities. Remember, Lincoln even suspended habeas corpus during the Civil War," Gorka told The Christian Post.

"These kinds of concerns are raised by those who do not understand that international law has little to say about non-state actors like al-Qaida," Gorka added.

In an opinion piece published in The Daily Caller, Republican Congressman Tim Griffin calls the upheaval regarding the NDAA an "unexpected misinformation campaign."

Griffin, representing Arkansas's second congressional district, agrees with Gorka, arguing that the Bill has been misinterpreted. 

"[Outside groups] have even gone so far as to allege that a U.S. citizen could accidentally or unknowingly provide substantial support to al-Qaida terrorists in committing acts of war against the U.S. Such a proposition defies any plain reading of the bill," he said. 

The most discussed section of the NDAA is entitled "Counter-Terrorism," found in Title X, subtitle D.

Griffin points to the provisions found in sections 1021 and 1022 of "Counter-Terrorism," which are creating a domino effect of panic.

Section 1021 addresses the issue of arresting U.S. citizens suspected of partaking in terrorist activity. Critics argue that the provision allows the military to indefinitely arrest anyone, including U.S. citizens, suspected of terrorist activity.

Griffin argues that those critical of section 1021 have failed to acknowledge that all U.S. citizens have the right to due process, as a result of the 2004 Hamdi vs. Rumsfeld court case ruling. The ruling declares all U.S. citizens have the right to challenge the legality of their detention in U.S. federal courts.

Section 1022 has also been a major source of contention between those supporting and opposing the bill. This section mandates the military custody of most terrorism suspects.

Critics argue that this section provides too much power to the military, undermining the extensive terrorist research conducted by the FBI and local law enforcement. They also argue that it forces military personnel to turn their guns on fellow U.S. citizens.

Rep. Griffin argues that in no way does section 1022 affect legal U.S. residents, but rather misinterpretation of key words in the provision have caused the U.S. community to make unfounded conclusions.

Evidently, much of the confusion concerning the bill has stemmed from what many consider to be a vague use of language.

President Obama has asserted that his administration "will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a nation."

Obama argues that although he does have reservations with certain provisions in the bill, he ultimately signed it to ensure the safety of the American peoples.

"Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people," the president said in a signed statement.

The bill is to go in effect in March 2012.