A Real Constitutional Law Professor’s Take On The NDAA

Western Journalism

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.

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