Motherboard

It’s not conspiracy, it’s frightening: The United States may be taking a leap forward towards becoming completely beholden to its military. Last week the Senate passed the National Defense Authorization Act which, pending full approval, would essentially declare the U.S. homeland a battleground, allowing the military to arrest and detain American citizens defined as “enemy combatants” indefinitely without due process. This is happening in the hallowed name of the War on Terror, and it’s spitting in the face of the Bill of Rights.

The 680 page bill, which has been described as a “broad and ill-defining drafting that includes massive provisions,” specifically states that the military has the right to detain anyone engaged in “anti-government acts.” Who that might include depends on the creativity of the military itself, but could easily include Occupy protestors, journalists and even average Joes filming the police.

Within the NDAA, Section 1031 specifically details: the rules for military detainment. Section 1031 focuses on pursuing al-Qaeda and Taliban operatives within the U.S. under the law of war, which is troubling enough on its own. But it also expressly gives the military the right to pursue “any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Essentially, this gives the military the right to pursue anyone in the U.S. under the rules of engagement of the war on terror, as long as they’re judged to have aided anti-U.S. forces.

There’s an insidious catch here: an American citizen judged by the military to be a terrorist sympathizer can be arrested under military law and held indefinitely without due process. Without due process, no independent court or jury will actually judge if the detainee is indeed a terrorist. This basically eliminates one of the most key provisions of the Bill of Rights, and hands an enormous amount of unchecked power to the military.

It gets worse. Section 1031 states that the ‘covered persons’ may be arrested as enemy combatants within the U.S. But paragraph 4 of Section 1032 provides a massive loophole for arresting those that can’t be even cursorily linked to terrorist forces:

WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

In other words, the already-weak requirement that those detained on the American “battlefield” be linked to terrorists may be waved if the Secretary of Defense submits a waiver promising that arresting someone under the laws of war, rather the the laws set for by our own Constitution, is necessary for “national security interests.”

David Seaman at Business Insider was one of the first to point out the vagaries of Section 1031 in the bill during a dressing-down of the media for not covering the bill. Seaman notes that Senator Lindsey Graham defended the bill while “calling to make the homeland a ‘battlefield.’” At the very least, with Osama bin Laden and much of the al-Qaeda hierarchy already dead, it seems a rather outdated argument. But with movements like Occupy gaining steam on the heels of the Arab revolutions this year, the comments seem more sinister.

The ACLU says there’s no shortage of top-level officials against the bill, stating that “The Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of the Justice Department’s National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive.”

While a last-minute compromise added to the bill before the 99-1 vote toned down the language on detentions, the Senate refused to specifically ban indefinite military detentions of U.S. citizens.

The revision states that “[n]othing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.” But the revision is empty. It states that the Senate will only grant the military the right to pursue U.S. citizens on U.S. soil as long as it doesn’t supersede current laws. But the military detainment of U.S. citizens has no legal precedent (aside from the Bill of Rights requirement to due process, which the NDAA already skirts).

Senator Dick Durbin explains it thusly, as quoted by HuffPo: “To this day the Supreme Court has never ruled on whether it is constitutional to indefinitely detain a U.S. citizen captured in the United States… The Supreme Court will decide who can be detained; the United States Senate will not.”

In essence, the Senate’s amendment forcing the military not to break current laws while it flexes its new power to arrest citizens, the Senate has avoided ruling on the issue, instead waiting for a court case involving the law to be sent to the Supreme Court for a ruling. That’s a common move in American lawmaking, but there’s one giant issue here: the Supreme Court may never see a case involving illegal detainment by the military because, by detaining citizens under the laws of war, the military doesn’t ever have to offer the detainee a civil trial or even a military tribunal. The detainee can be held indefinitely, without trial or notification, which cuts out the Supreme Court’s ability to judge the ruling altogether.

Seaman, following up the reports of the amendment, says talk of the waiver is simply obscuring the rest of the bill:

It doesn’t matter if a last-minute waiver is in the bill; the offending portions are currently worded so vaguely, that any US citizen can be considered a “terrorist” or an aid to terroristic activity. Any US citizen who is inconvenient to the US government can be detained and silenced.
Also, the intent was extremely bad here — Sens. John McCain, Carl Levin, and Lindsey Graham intended for this bill to redefine the US homeland as a “battlefield” (Graham’s words, not mine), allowing the revocation of even our most basic civil rights and access to due process.

This is legitimately scary. Should the bills that passed the Senate be matched with a similar bill passed in the House, any American citizen could be detained without due process as long as they’re judged as anti-government by their captors. It makes the Patriot Act feel like nothing more than an annoying inconvenience. The only true hope is that the White House vetoes the bill, which it has said it would. But if the media focus is trained on meaningless amendments to the bill, and the public doesn’t treat it for the call for military rule that it is, that view may change.

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