The NDAA and the War on Terror

The National Defense Authorization Act for the Fiscal Year 2012 (NDAA) has been incredibly controversial.  Although it might seem controversial because it allows for the indefinite detention of an individual suspected of terrorism, the real controversy lies in how one views the nature of terrorism itself.

No two government agencies agree on what terrorism is.  The first place to start in this debate, as an expert will tell someone, is to define exactly what terrorism is.  The word terrorism started during the French Revolution, where it was used as a positive term that denoted re-establishing order and justice by the state.  Yet, today the FBI says that terrorism is “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objective.”  The U.S. Department of Defense defines terrorism as “[t]he unlawful use of violence or threat of violence to instill fear and coerce governments or societies.” The best workable definition, though, comes from America’s pre-eminent expert on terrorism, Bruce Hoffman.  He defines terrorism as the “deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change” by sub-state actors (Hoffman, Inside Terrorism, pg. 40).

Is terrorism merely a crime, the same as organized crime or mass murder?  Or is terrorism an act of war, a particular form of sub-state violence that replicates a state’s military?  If terrorism is a simply a crime then the NDAA is unnecessary.  However, if terrorism is an act of war then the government has the right to detain suspects of terrorism as prisoners of war.

The American Civil War and several little-known court cases had a great affect on America’s conceptualization of the ‘War on Terror’. (A side note: although I disagree with the designation ‘War on Terror’ because it would be like calling World War II the ‘War on Blitzkrieg’ or the ‘War on Kamikazes’; I use it because it is the popular term.)  The Supreme Court decided the Prize Cases in 1863 after President Abraham Lincoln blockaded the Confederacy without a formal declaration of war.  The Supreme Court ruled “[a] state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war.”  Furthermore, the Court ruled that “[t]o create this and other belligerent rights as against neutrals, it is not necessary that the party claiming them should be at war with a separate and independent power” and “[a]ll persons residing within the territory occupied by the hostile party in this contest are liable to be treated as enemies.”  These three statements help shape the paradigm in which Americans view the present War on Terror and its conceptualization.  A little back history of the ‘War on Terror’ will help further contextualize how the Prize Cases apply.

On September 11, 2001, al-Qaeda operative attacked the United States by flying planes into the Twin Towers and the Pentagon.  Al-Qaeda was (and is) an international, terrorist organization that promotes an Islamist, anti-American agenda.  America never declared war on al-Qaeda, but the terrorists’ attacks on America and their own declaration of war against the US created a “state of war,” which fulfills the first part of the quoted Prize Cases.  Second, al-Qaeda is a sub-state actor; it does not have the rights and privileges of a state in the course of war.  America is at war with a non-state actor.  Finally, because al-Qaeda is not a state, nor does it own territory, the best application of the third quote is to say that all who are part of al-Qaeda or give it aid should be considered an enemy of the US.

Now, returning to the NDAA.  Considered within the context of the Prize Cases and the Supreme Court’s ruling, the act does nothing more than codify what the Court already ruled and how America views terrorism.  Terrorism is an act of war, and those who engage in it should be treated as soldiers.  However, because terrorism is an illegitimate and illicit form of violence and warfare, these soldiers cannot be given the same privileges as those who comply with the Geneva conventions and international standards.  Indefinite detention is allowed because, although terrorists are soldiers, they do not follow the rules of war.  The NDAA only calls for the detention of those people who are part of al-Qaeda, help al-Qaeda, or fight against coalition forces in the current war zone.  This side of the NDAA is appropriate legislation because it operates within the current war America is fighting against al-Qaeda and detains those who side with the enemy.

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Comments

  1. I am a bit concerned that the single most controversial item in the NDAA2012 is not mentioned in you’re opinion piece. In subsection 1022 is the authorization of the President of the United States to determin whether a US citizen individually, is a valid target for said detention. the very fact that President Barrack Obama elected to state in it’s signing “I want to clarify that my 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.”  If this indeed was not the case there was certainly was no reason to make such a statement . To make no mention of it in your piece is concerning but there are more issues to address.  Next is the definition of what shall prompt said detention-  “a person ,who is a part of, or substantially supported Al-Queda, the Taliban, and or associated forces that are engaged in hostilities with the United States or it’s coalition partners, including any persons who have committed a belligerent act, or has supported any such hostilities in aid of such enemy forces” What one finds concerning in said definition what is the current and the potential reinterpetation of support And association And while I could not envision a US President who willfully reinterpret these terms to a much broader meaning it certainly leaves open the doorway to a future president to do just that.  As conservatives we should be extraordinarily cautious when written law begins to erode stop gaps that contain government powers and authority. I have taken the stance and see not just a small alteration in our law with NDAA2012 but the pandora box we lay before the future executive offices. We can all see that the inacting the Patriot act was at once a crucial implementation of laws that broaden our ability to combat international terrorist plots against the US and just as equally an erosion of civil liberties we held sacrosanct since the ratification of the Constitution. Can we not perceive other events occurring in the future that will equally challenge our mentalities and/or a knee jerk reaction such an event to further wither our resolve to maintain our liberties while seeking optimal security.

    Peace be with you
    Patrick T. Brown

  2. My Congressman wrote to me on the subject of indefinite detention of American citizens without due process (which is the real problem here). IF he is telling me the truth, then who is lying? MSM certainly.
    Dear Mr. Totherow:
    Thank you for contacting my office regarding the National Defense Authorization Act (NDAA). I appreciate having the benefit of your thoughts.
    Congress’s role in providing for the national defense is one of the most fundamental and important responsibilities enshrined in the Constitution. Under Article I, Section 8, the U.S. Congress is given the authority to “provide for the common Defense and general Welfare of the United States.” Each year, the House and Senate Armed Services Committees consider the NDAA, a comprehensive bill that provides pay and benefits for our troops, buys the weapons and equipment they need, and funds research to help meet future threats. On December 14, 2011, the House of Representatives passed the NDAA with my support by a vote of 283-136. On December 31, 2011, President Obama signed the NDAA into law.
    Specifically, you mentioned your concern over the provisions in the bill dealing with detainees – Sections 1021 and 1022. Since September 18, 2001, the United States has operating under the Authorization for Use of Military Force which has been affirmed by federal courts. This reauthorization of NDAA would codify these existing practices used to detain terrorists that are members of Al-Qaeda, the Taliban, or other affiliated terrorist groups and who are found either planning or executing an attack on the United States. However, the bill specifically exempts U.S. citizens and lawful resident aliens from the detention provisions. The bill adds explicit protections for American citizens – even American citizens who have joined Al Qaeda to take up arms against the United States.
    Section 1021 defines who can be detained by the Armed Forces 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.” Section 1021 goes on to state “Nothing 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.”
    Section 1022 of the NDAA requires that those terrorists who are detained be held by the military, but it specifically exempts U.S. citizens in subsection B: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”
    American citizens have certain inalienable rights, enshrined in the Constitution, that guarantee our right to a speedy and public trial and protect us from illegal searches and seizures. I will continue to defend those rights and support efforts to protect the security of American citizens. That is why I supported the final passage of the NDAA.
    Thank you again for contacting my office. It is an honor to serve as your United States Congressman. Your suggestions are always welcome, and if ever I may be of assistance, please do not hesitate to call me.
    Sincerely,
    M
    Patrick McHenry
    Member of Congress

  3. “Indefinite detention is allowed because, although terrorists are soldiers, they do not follow the rules of war” This statement leads me to believe that you feel that since theses “soldiers” do not follow the rules of war, that we do not have to follow the rules of war?

    To remove ANY citizens constitutional rights for any reason is dangerous at best!

  4. It is the trouble that the executive can in fact assess an individual to in violation of support and associations without any oversight. The fact Congressman McHenry feels they collectively have guaranteed the US citizenry’s rights in light of subsection b doesn’t prevent the executive branch from electing to take such action. This is backed the POTUS’ statement at its signing into law on 12/31/11

    I am not screaming in full panic mode that the sky is falling but I would be remissed if I didn’t point out that this is a breach of liberty and we must remain cautious of an broadening gap in the opening.

  5. It is the trouble that the executive can in fact assess an individual to in violation of support and associations without any oversight. The fact Congressman McHenry feels they collectively have guaranteed the US citizenry’s rights in light of subsection b doesn’t prevent the executive branch from electing to take such action. This is backed the POTUS’ statement at its signing into law on 12/31/11

    I am not screaming in full panic mode that the sky is falling but I would be remissed if I didn’t point out that this is a breach of liberty and we must remain cautious of an broadening gap in the opening.

  6. You obviously have never served in the U.S. armed forces, nor litigated in an American civil or criminal court case have you? Is this your first article… On ANY subject?

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