The most recent renewal of the bill, HR 641 in the House of Representatives, took place last year by a vote of 350-69 in the House, with 13 abstaining. All US congressmen are up for reelection every two years. The law has sparked a grassroots movement in opposition to it which may impact the congressional elections.
2014 has so far drawn a bumper crop of congressional challengers in both Democratic and Republican primaries, and in the general election in November. Some candidates have already made an issue out of NDAA. In California alone there are over 200 challengers in primaries and in the general election, vying for 53 congressional seats.
Obama told former Fox News anchor Ben Swann, in a wide-ranging interview, that he only signed the bill so that the Pentagon would not be without financing, and so that soldiers could get paid. The military detention language was part of a broader spending bill. Obama told Swann Obama told Swann.
" I also said that a US citizen can never be subject to that kind of detention. Congress disagreed with me."
Obama laying the charge at Congress's feet, saying in essence that Congress sought to violate the rights of Americans, directly contradicts the claim by many congressmen who voted for the bill that the section on military detention excludes American citizens. The Sixth Amendment of the US Constitution guarantees citizens a "speedy and public" trial by jury "in all criminal prosecutions," with the right to challenge evidence and confront witnesses.
The law was first signed by Obama on New Years Eve of 2011.
In the interview, which took place in 2012, Obama held out hope that the courts would strike down the law he had signed. He told Swann:
"I also said a US citizen can never be subject to that kind of detention. Congress disagreed with me, and I didn't want to not be able to finance our military to pay our soldiers, our troops, and I signed the bill but what I also said was, look, I'm never going to use this power, and what I suspect is that the courts are going to agree with us over the long run."
However, the US Supreme Court recently let the law stand, after it was struck down as unconstitutional by Judge Katherine Forrest of the New York District Court. Among the plaintiffs in that lawsuit against the government, which alleged that the military detention section of the NDAA was unconstitutional, were Daniel Ellsberg and Noam Chomsky.
The passage of the NDAA has sparked a nationwide grassroots movement, which has not been reported in the major media, which seeks to blunt the impact of the law and call attention to its unconstitutionality. The movement has met with remarkable success in state houses and in local governments across the country. To date numerous states and dozens of localities, including Allbany, NY, have passed or introduced some form of legislation which bars state and local law enforcement authorities from cooperating with federal authorities acting under the law, or which expresses some form of resistance to relinquishing citizens' rights.
Many in the movement have accused sitting congressmen who voted for the law of "treason" and betrayal of their oath to "support and defend the Constitution of the United States, against all enemies, foreign and domestic."
Challengers to incumbents are already making their votes on NDAA an issue.
"I'm just a mom," Clark County, NV Citizen Opposes NDAA
Upon passage of the indefinite military detention provisions for the first time in 2011, Michigan Representative Justin Amash said that the law was "carefully crafted to mislead the public" into thinking that it did not apply to US citizens. Amash blocked an attempt by House leadership from both parties to pass the latest renewal of NDAA by a voice vote, which would have made it impossible to determine who voted for it or against it. Amash demanded a roll call vote.
Amash posted on his Facebook, after the most recent vote on NDAA, for the 2014 fiscal year:
"The bill does not address sec. 1021 of the 2012 NDAA, which unconstitutionally granted the President sweeping new power to indefinitely detain anyone, including American citizens inside the United States, without charge or trial."
Despite Obama's insistence in the Swann interview that he did not want to sign the bill as written, as outrage grew in 2012 over the passage of the provision, Michigan Democrat Senator Carl Levin said on the Senate floor that, in fact, it was the Obama administration which insisted on the language which included Americans, and that House and Senate committee members had already taken care to exempt Americans. Levin said that it was at the administration's request that the exemption was removed.
Levin Says Administration Objected to Exclusion of Americans from NDAA
Some congressmen make no secret of their intent to allow the military to sweep Americans from their homes or off the streets, to be held without charge or trial for duration of the "war on terror," upon mere, unproven suspicion of terrorism. Addressing the US Senate, South Carolina Senator Lindsey Graham once fumed that American citizens "thinking of helping Al Qeada" will be told to "shut up" when they ask for a lawyer. Graham did not say who or how it would be determined which Americans were "thinking of helping Al Qaeda."
Senator Lindsey Graham: "Shut Up"
NDAA stands for the National Defense Authorization Act, which has in prior years been a fairly routine authorization of funding for the Pentagon. As 2012 neared, however, alarms over a new section went up from the ACLU. Chris Anders, the ACLU's Senior Legislative Counsel, wrote that the pertinent section contained:
"no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens..."
Across the Internet, anonymous defenders of Obama's decision to sign the bill responded vociferously that the abridgment of rights under the Sixth Amendment of the Constitution did not apply to Americans. Blogs and forums became filled with mockery of those who said it that it did, citing misunderstanding of the law.
Many states filing deadlines for congressional challengers are not until late summer, and so more challenges may be yet to come.
Whether or not challengers will be able to overcome incumbents' money and other advantages may depend on how well they are able to harness the citizen energy swirling around NDAA at the grassroots level. The far-flung network of activists, who are deeply rooted in their own communities, could provide ready-made, fledgling ground organizations for congressional challengers.
