A Real Constitutional Law Professor’s Take On The NDAA

Constitution A Real Constitutional Law Professors Take On The NDAA

The National Defense Authorization Act (NDAA), recently adopted by Congress
and signed into law by Barack Obama, contains language that has raised substantial
Constitutional questions by civil libertarians on both the political right and on the political left.
The bulk of the lengthy legislation deals with the routine authorization for military spending by
the Pentagon, including items such as military pay, veterans’ benefits, weapons procurement,
etc. Such legislation must be passed on a regular basis if the United States military is to
continue to operate.

However, in the U. S. Senate version of the legislation, S.1867, there are sections
dealing with the detaining of people suspected of being involved with terrorist organizations or
any groups engaging in, or planning, hostile actions against the United States. These suspects
can be arrested by American military forces and detained indefinitely, without formal charges
being filed, and without trial, until the “hostilities” end. The term hostilities refers to the
general war on terror, not to specific military actions, such as those in Afghanistan or Iraq.
Therefore, there is no end in sight to the possible period of detention. This is the version that
was ultimately passed by the full Congress.

The question is, does the law allow members of the United States armed forces to
detain American citizens, including those arrested in the United States, without granting them
due process? The language in the bill is unclear, at best. In section 1031, the first paragraph

“(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary
and appropriate force pursuant to the Authorization for Use of Military Force (Public
Law 107–40) includes the authority for the Armed Forces of the United States to detain
covered persons (as defined in subsection (b)) pending disposition under the law of

The legislation then provides a definition of the individuals covered by the legislation:

“(b) COVERED PERSONS.—A covered person under this section is any person as follows:

(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.”

The legislation goes on to provide various options for dealing with the individuals
arrested pursuant to the authority provided to the President. It states:

“(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as

described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities
authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the
Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful

(4) Transfer to the custody or control of the person’s country of origin, any other
foreign country, or any other foreign entity.”

The next section of the law is 1032, and it requires the military to detain certain
individuals that fall under the definition of the act. Critics point out that the language is so
broad that American citizens can fall under the provisions of the act, and can be detained
indefinitely, without the Constitutional protections provided to them under the 5th and 6th
Amendments to the U. S. Constitution. In other words, there would be no due process, no
right to a speedy trial, no right of habeas corpus, and no right to a trial by jury.

However, supporters of the law, including some members of Congress, point
to additional language in the same section of the law that they say protects the
Constitutional rights of U.S. citizens. The specific provisions state:


(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody
under this section does not extend to citizens of the United States.

(2) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military
custody under this section does not extend to a lawful resident alien of the United
States on the basis of conduct taking place within the United States, except to the
extent permitted by the Constitution of the United States.”

The problem is that when the language is carefully read, it becomes clear that this
does not exempt U.S. citizens from being detained without due process, but only says
that it is not required under the previously cited provisions. The decision of whether an
American citizen can be detained indefinitely, without being formally charged, or tried, is,
therefore, left in the hands of one person, the President of the United States.

Giving the President of the United States, or anyone else, this kind of authority
over American citizens was something that the framers of the U. S. Constitution, and,
specifically, the Bill of Rights, were trying to prohibit. Yet it appears that this law is doing
what the founders of our country feared. One of the problems is that it has been done
before. U.S. citizens of Japanese descent were interred by the U.S. government after the
Japanese attack on Pearl Harbor. The detention was the result of Executive Orders issued
by then President Franklin D. Roosevelt.

There were numerous challenges in the courts to the detention orders, and several
cases reached the U.S. Supreme Court, including Yasui v. United States, 320 U.S. 115

(1943), Hirabayashi v. United States, 320 U.S. 81 (1943), Ex parte Endo, or Ex parte
Mitsuye Endo, 323 U.S. 283 (1944), and Korematsu v. United States, 323 U.S. 214
(1944). In all of these decisions, the court upheld the right of the government to place
curfews on Japanese Americans, to exclude them from certain areas, and to place them in
internment camps. These decisions were later considered a mistake, and, in the 1980’s,
when evidence was uncovered that the government had been aware that there was no real
threat, but withheld that information from the courts, the decisions were overturned.

The latest case involving the detention of U.S. citizens by the military is Hamdi
v Rumsfield 542 U.S. 547 (2004). Yaser Isam Hamdi was born in the United States,
and, then, his family moved to Saudi Arabia. He was captured in Afghanistan during the
U.S. invasion in 2001 and held in Guantanamo Bay, Cuba, as an enemy combatant. He
challenged this status in court, and, in a plurality decision, the Supreme Court Justices
ruled that U.S. citizens, even when arrested in foreign countries, and designated as enemy
combatants, must be provided with an opportunity to have the legality of their detention
decided in a civilian court.

This case would appear to settle this issue, but Congress has used language in NDAA
that appears to be an attempt to circumvent this ruling. In addition, Congress has conferred
the power to order long term detentions of U.S. citizens on an occupant of the White House
that has repeatedly expressed his willingness to ignore the Congress, the courts, and even
the U. S. Constitution itself. This establishes a dangerous situation for Americans.

The new law also appears to repeal, or at least modify, the Posse Comitatus Act, that
was passed in 1878 at the end of post Civil War reconstruction. That law is designated as
18 USC 1385, and it prohibits the states of the union, and local governments, from using
members of the U.S. Army for law enforcement purposes. It was later amended to include
the Air Force, and the Marines, and the Navy are under the same prohibitions, by order of
the U. S. Department of Defense. If the critics of NDAA are correct, and members of the
United States military can make arrests of U.S. citizens in the United States, then it appears
that the intent of the Posse Comitatus law is negated.

In conclusion, the language in the bill appears to be deliberately vague and confusing,
and many members of Congress seem to be unaware of what they were actually voting for.
However, that does not lessen the impact of a law that gives the President extraordinary
powers to violate the Constitutional rights of American citizens. If Congress can’t be
convinced to amend the law to remove those provisions, then the courts must be asked to
declare the provisions unconstitutional.

This post originally appeared on Usjf.net and has been reprinted with permission.

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