Saturday, June 1, 2013

Surveying NDAA Provisions And Domestic Terrorism In America

Obama had signed into law the NDAA, which is controversial for granting broad powers to the executive branch of the U.S. government to combat what it perceives to be terrorist activities, both foreign and domestic. The concerned section of the bill, entitled "Counterterrorism", is as follows:

Subtitle D—Counterterrorism
Sec. 1021. Affirmation of authority of the Armed Forces of the United States to de-
tain covered persons pursuant to the Authorization for Use of Military
Sec. 1022. Military custody for foreign al-Qaeda terrorists.
Sec. 1023. Procedures for periodic detention review of individuals detained at
United States Naval Station, Guantanamo Bay, Cuba.
Sec. 1024. Procedures for status determinations.
Sec. 1025. Requirement for national security protocols governing detainee commu-
Sec. 1026. Prohibition on use of funds to construct or modify facilities in the United
States to house detainees transferred from United States Naval Station,
Guantanamo Bay, Cuba.
Sec. 1027. Prohibition on the use of funds for the transfer or release of individuals
detained at United States Naval Station, Guantanamo Bay, Cuba.
Sec. 1028. Requirements for certifications relating to the transfer of detainees at
United States Naval Station, Guantanamo Bay, Cuba, to foreign coun-
tries and other foreign entities.
Sec. 1029. Requirement for consultation regarding prosecution of terrorists.
Sec. 1030. Clarification of right to plead guilty in trial of capital offense by military
Sec. 1031. Counterterrorism operational briefing requirement.
Sec. 1032. National security planning guidance to deny safe havens to al-Qaeda
and its violent extremist affiliates.
Sec. 1033. Extension of authority to make rewards for combating terrorism.
Sec. 1034. Amendments relating to the Military Commissions Act of 2009. 

While I'm personally a pacifist, and strongly disapprove of all military intervention, regardless of perceived merits, the majority of Americans are complacent with the military activities abroad these 
past 10 years, with the last two presidents (Bush and Obama) enjoying two terms in office despite the military campaigns conducted under their respective administrations.
However, domestic terrorism intervention (which treats all of the American people as potential 
terrorists) is a notion that directly impacts Americans' safety, civil rights, and well being, so it's no wonder that the NDAA has become under fire by the ACLU, and cities and states have been 
passing laws left and right banning its enforcement.

According to the Obama administration, the NDAA does not give Obama any greater powers to combat terrorism, foreign or domestic, than were already granted under the AUFF. However, the text provides no broad provisions for the combating of domestic terrorism, authorizing the use of military force only for those who conducted or who were involved with the 9/11 terrorist attacks.  

The NDAA provisions are far broader, extending the scope of executive powers to permit military intervention for any kind of terrorism, foreign or domestic, and includes special provisions concerning activities which are criminal but previously not considered terrorism:

Subtitle B—Counter-Drug Activities
Sec. 1004. Extension of authority for joint task forces to provide support to law en-
forcement agencies conducting counter-terrorism activities.
Sec. 1005. Three-year extension and modification of authority of Department of De-
fense to provide additional support for counterdrug activities of other
governmental agencies.
Sec. 1006. Two-year extension and expansion of authority to provide additional
support for counter-drug activities of certain foreign governments.
Sec. 1007. Extension of authority to support unified counter-drug and counterter-
rorism campaign in Colombia.
Sec. 1008. Reporting requirement on expenditures to support foreign counter-drug

As you can see, while Subtitle B Sections 1004-2008 don't explicitely define drug trafficking as "terrorism", the powers it grants are equivalent to, and implicitly justified in the name of counter-terrorism. These provisions also make it clear that even those not affiliated with terrorist organizations can be legally attacked by U.S. military forces, and / or detained without trial, if the President determines them to be terrorist. 

What is the definition of a "terrorist", according to the NDAA? Apparently there isn't an official one (scary, right?), but there is an official definition of "terrorist activity", "international/domestic terrorism", "terrorism", "terrorist group", and "terrorist sanctuary". I would paste the full definitions, but they're all far too long. But I can make the point needed with just the first definition:

*Note: "WCS" is an acronym for "Worst Cast Scenario" for this section

"Terrorist Activity":  "any activity which is unlawful under the laws of the place where it is committed...which involves any of the following: 

(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle). 

WCS Stealing a car or boat is considered terrorism

 (II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. 

WCS: Kidnapping, blackmailing, or hostage-holding are all terrorist activities

(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person.

WCS: anyone who attacks an oppressive authority that is internationally protected (for whatever reason) is a terrorist. 

(IV) An assassination. 

WCS: all hitmen are terrorists.

(V) The use of any - (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. 

WCS:  (a)  If you have the flu and knowingly associate with people, you're a terrorist
(b) if you user a tazer to defend against a mugger, you've committed a terrorist act

(VI) A threat, attempt, or conspiracy to do any of the foregoing."

 WCS: even if you had no intention of doing any of the above, if you so much as verbally or vocally entertained the possibility, you're considered a terrorist.

 Of course, these are all worst-case scenarios, and are only likely scenarios to the chronically paranoid, but it still is a major concern that the federal government, if it so willed, could use such open-ended interpretations to legally justify the military force provisions of the NDAA. Even if Obama pledged not to abuse those provisions, A politician's promise is of no comfort when he has the legal right to disregard it. Such concerns are why even the ACLU, a group unaffiliated with conspiracy theorism or tinfoil hats, is deeply concerned about the legality of the NDAA. Even if only in theory, the special provisions of HR.1540 and HR.4310 (which did nothing to change the provisions, merely reiterating the right to habeas corpus already part of Article 1, Section 9 of the Constitution) make every American citizen a potential target. 

Regarding the NDAA, we must conclude that although the claims regarding executive abuse of NDAA powers are greatly exaggerated, there is quite a bit of truth to them, and the threat of such abuse, while far from material at this point, is most  certainly present.