Nullify the NDAA

On Dec. 31, 2011, while Americans celebrated the arrival of the new year, President Obama signed into law the National Defense Authorization Act (NDAA). This was nothing unusual in and of itself, as Congress approves an annual defense spending bill. What made the 2012 NDAA particularly newsworthy are sections 1031 and 1032, which allow the president to use U.S. military forces to indefinitely detain American citizens who are merely suspected of having involvement with a terrorist organization.

For those largely unfamiliar with the NDAA controversy, I will cite a portion from a previous article detailing the controversy:

Section 1031 of the bill begins: “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.”

The “covered persons” are defined as:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, 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. [Emphasis added.]

In other words, the president can authorize the military detention of anyone who is merely suspected of being involved with a terrorist organization, which are not strictly defined.

Section 1032, “Requirement for Military Custody,” grants that the “Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force in military custody pending disposition under the law of war.”

Who are the persons described in paragraph 2? Again, it is anyone who is determined

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

Now, the section goes on to state that “the requirement to detain a person in military custody under this section does not extend to citizens of the United States” or to a lawful resident alien of the United States. Some have claimed that this exempts American citizens and lawful aliens from military detention, but note that it only exempts them from the requirement of such detention in military custody. In other words, the military may not be required to detain them, but it is allowed to do so.

An outspoken advocate for the bill, South Carolina Sen. Lindsey Graham argued:

If you are an American citizen and you betray your country, you’re going to be held in military custody and you’re going to be questioned about what you know. You’re not going to be given a lawyer if our national security interests dictate that you not be given a lawyer and go into the criminal justice system. We’re not fighting a crime; we’re fighting a war.

Of course, the NDAA does not address those who “betray” their country, only those who are suspected of having connections with terrorist organizations (a term not strictly defined in the bill). After all, due process in the United States requires proof of guilt beyond a reasonable doubt, whereas the NDAA acts outside of due process. The assumption of the NDAA, then, is guilt before and even without trial, conviction outside of legal procedure.

The Constitution, on the other hand, already defines how such circumstances should be handled with American citizens: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court” (Article III, Section 3).

Even those guilty of betraying their country, the circumstances Graham concerns himself with, are ensured due process. Charges are made, a public trial takes place, witnesses are called or a confession is given, and a verdict is handed down. Not so with the NDAA.

But there is good news! Following a massive grassroots uprising, the Commonwealth of Virginia has passed a nullification measure (H.B. 1160) that prevents any Virginia law enforcement agency from cooperating with the indefinite detention of Americans.

Michael Boldin, writing for the Tenth Amendment Center, tells the full story of H.B. 1160:

H.B. 1160 originally passed the Virginia house in February by a vote of 96-4. It went to the Senate where opponents tried to hold it over until next year, effectively killing it. The vote was a tie — and failed. In two short days, thousands of grassroots activists contacted their senators to support the bill and the next vote, taken quickly, was a different story — 39-1.

With minor amendments, the bill needed to go back to the House for approval. A number of parliamentary maneuvers were used to stall and kill the bill. Various votes to delay (“pass by”) actual approval were held. Eventually, the House rejected the Senate amendments and the bill was sent back to the Senate for another consideration.

Again, the grassroots got on board — and activists from groups across the political spectrum called and emailed their senators to move the bill forward. The Senate, after a few days of jousting, “receded” from their original amendment by a vote of 37-1 in March, effectively passing the original House bill from the previous month.

Virginia Gov. Bob McDonnell reportedly did not want to sign the bill, but the push from the people was too great. With final approval from the legislature, the bill is expected to become law on July 1.

One day later, the Arizona House voted to approve a similar measure. The bill, S.B. 1182, must now be approved by the state Senate and Gov. Jan Brewer. Many other resolutions and bills are currently being presented across the nation.

Many Americans are unaware of the overreaching tyranny of their federal government. Those who know are often paralyzed, either by fear or simply not knowing what to do. The bad news turns to anger or frustration, but too seldom does it turn into beneficial action. But these recent developments in Virginia and Arizona demonstrate the power of grassroots action, the might of those who will not be trampled by government power grabs.

Get involved: for model legislation to send to your local or state representatives, or for more information about the nullification movement, click here.

Author: Dr. Brian Phillips

Dr. Brian Phillips is a history, philosophy, and rhetoric teacher and serves as the pastor of Holy Trinity Reformed Church in Concord, N.C. You can read more of his writings at Truth and Culture and may e-mail him at