Deconstructing the National Defense Authorization Act

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The Romero institute, a non-profit law firm, is spearheading a mission to strengthen an anti-National Defense Authorization Act (NDAA) Santa Cruz resolution passed in April 2012 through its project, the Campaign to Make Santa Cruz a Constitution Protection Zone. Last Wednesday, the group organized an anti-NDAA event at the Resource Center for Nonviolence, with People Against the NDAA (PANDA) director Dan Johnson as the keynote speaker.

The NDAA has been in effect for 51 years and prior to 2012 has primarily existed to fund U.S. armed forces and aid military families. As a result of the 9/11 terrorist attacks, the NDAA has transformed into a “haystack bill” that continues to grow with added provisions such as 1021 and 1022, which were signed into effect on Dec. 31, 2011 by President Obama.

“In a nutshell, [these provisions] authorize the application of the laws of war to American soil, making us a battlefield,” Johnson said. “They authorize the military to detain any person, including American citizens, without a charge and without a trial, essentially affording the military the authority to ship any person here on U.S. soil, or any American citizen abroad, to Guantanamo Bay.”

California passed AB351 in October to halt provisions 1021 and 1022 from being applicable, a bill Johnson said “doesn’t even attempt to enforce California’s oath.”

“The bill says, ‘the state can’t participate in detention, prosecution or investigation if the NDAA violates the constitution,’” Johnson said. “All you have to do is go in court and claim the NDAA didn’t violate the constitution. Problem solved, you’re not prosecuted and you’re not punished.”

Santa Cruz passed a resolution in April 2012 supporting the repeal of sections 1021 and 1022.

Communications director of the Campaign to Make Santa Cruz a Constitution Protection Zone Robert Moddelmog said like California’s AB351, Santa Cruz’s legislation had good intentions behind it, but fell short in solidifying a constitutional protection zone.

“The signed resolution states that the city of Santa Cruz ‘hereby supports the repeal of the NDAA’s detention provisions described above,’” Moddelmog said, “and directs the mayor to write letters to our congressman and senators ‘indicating the city’s support for legislation to repeal those detention provisions,’”

Moddelmog says while this is an admirable stance, Santa Cruz needs to go one step further and actively stop any violations of the constitution from occurring, rather than only asking for its repeal.

Johnson stressed the government doesn’t have to present any evidence in taking these actions, it merely has to allege you are “suspected” of being a danger or of aiding terrorism.

“Terrorism is a method, and terror is an emotional reaction,” Johnson said, “you can’t legislate either out of existence.”

Johnson expressed his concerns regarding the vagueness of what constitutes being a terrorist, citing numerous reports such as the Department of Homeland Security’s terrorism study and a Responses to Terrorism (START) report released 31 days after the NDAA was signed. START categorizes terrorist acts by ideological motivations, such as “extreme right-wing” or “single issue.”

For example, the START report describes “extreme right-wing” terrorist groups as “groups who are nationalistic, anti-global, suspicious of centralized federal authority, reverent of individual liberty and believe in conspiracy theories involving grave threats to national sovereignty and/or personal liberty.”

“Regardless of what words you put in here, the key is suspicion, reverence, and belief,” Johnson said. “All of those are thoughts, none of those are actions … Is thought a crime now?”

Johnson said sections 1021 and 1022 violate 14 provisions of the U.S. constitution including the first and fifth amendments. In the 2012 court case Hedges v. Obama, several journalists filed a federal court lawsuit challenging the NDAA’s constitutionality. Judge Forrest sided with the lawsuit saying its vagueness “has a chilling impact on first amendment rights,” however the Second Circuit Court of Appeals overturned this ruling over claims that the plaintiffs lacked the legal standing to challenge these sections of the NDAA.

“D.C. is not going to fix it,” Johnson said. “The states aren’t going to fix it, so we’re going to our towns … All politics are local, let’s make it that way.”

Johnson explained how PANDA helped Albany, N.Y. as well as Oxford and Webster, Mass. become the only constitutional protection zones in the U.S.

Johnson explained a three-step process was necessary in accomplishing a constitutional protection zone. First, people need to learn about their local government and educate themselves about the NDAA. Second, communities must unite and “build an anti-partisan coalition, from left, from right and everywhere in between.” Lastly, people need to work with their city council to pass a resolution that actively works to stop the constitutional violations in sections 1021 and 1022.

“We don’t want [Santa Cruz’s] resolution to be an ordinance,” Johnson said. “The supreme court isn’t going to rule in favor of a local law overriding what they consider a federal law, we don’t want the supreme court to be able to challenge your ordinance.”

Daniel Sheehan, constitutional lawyer and general counsel of the Romero Institute, said the 2012 NDAA violates our most “profound and fundamental rights” and that no person should tolerate this suspension of our rights.

“These rights belong to us as a matter of absolute right,” Sheehan said. “We will not, we need not, we must not tolerate any effort on the part of the U.S military and executive branch to suspend and take away these rights from us.”