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NDAA: The Biggest Election Issue No One's Talking About

You don't have to live alone in the woods, reading issues of Guns and Ammo and co-writing your manifesto with beard lice, to be terrified about the state of basic freedoms in America today. Given the counterterrorism provisions in the fairly recent National Defense Authorization Act of 2012 (NDAA), we currently live in a country where the government can pick up American citizens and detain them indefinitely without access to a lawyer or even a criminal trial. That means locked up forever without even the basic protections we afford to rapists and murderers.

"That can't be right," you say. "Such a power would be completely unconstitutional!"

And you're right. Even President Obama said he had "serious reservations with certain provisions [of the bill] that regulate the detention, interrogation and prosecution of suspected terrorists." And then he signed it.

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"I'll sign my name, but I'm not gonna draw a smiley face in the O like usual."

But the point is not just to beat up on the president. After all, Governor Romney did that for 90 minutes in last Wednesday's debate without a single mention of these NDAA provisions. That's because the NDAA will persist under a Romney administration as well. That's right: Regardless of who wins in November, your lingering notions of living in a country that is free and democratic can best be described as "quaint" and "wrong."

So considering that this law alters our concept of what it even means to live in a democracy, why is no one talking about it? Why does no one seem to care? There are three major reasons, but first, let's talk about what the NDAA is.

What Is the NDAA?

The primary role of the NDAA is to provide for the Defense Department's budget, which this year amounts to a cozy $662 billion. However, the NDAA also contains counterterrorism provisions in sections 1021 and 1022 that allow the federal government to imprison any person "who was part of or substantially supported al-Qaida, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners" until "the end of the hostilities."

Did that clear it up for you? No? See, that's part of the problem. The NDAA is so poorly defined that it becomes a bit of an inkblot test for its possible effect. But the thing is, when it comes to basic, constitutionally protected, fundamental freedoms, we typically don't take an "Ahh, y'know what I mean" approach. What we do know is, pursuant to the NDAA, American citizens on American soil can be jailed indefinitely without the right to legal counsel if suspected of being a terrorist. And as Senator Rand Paul has pointed out, there are already all sorts of things on the books that can make you a suspect, such as missing fingers or having more than a week's worth of food in your house.

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This morning, I sent a month's worth of food to each of the Cracked columnists and then phoned a tip in to the FBI so I didn't have to be alone in prison after the government read this column.

So, here we are in a tight election, and none of the candidates or pundits are talking about the one issue that's at the heart of the role of government and our rights as citizens. Why?

#3. No One Believes That a "Liberal" Like Obama Could Sign Such a Bad Bill

Given the NDAA's ambiguity, many feel that they can interpret it in a nonthreatening way. After all, what are the odds that a liberal former constitutional law professor like Barack Obama would infringe on our rights? But the thing is, in the 21st century, political adjectives have finally become more meaningless than the words we use to describe popular music. Obama is a liberal only in the sense that Green Day is punk.

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Although not as bad as detention at Guantanamo Bay, my heart goes out to anyone currently in Billie Joe Armstrong's rehab group. Stay strong, brothers.

It seems it doesn't matter what the president does in terms of drone strike assassinations, reneging on campaign promises to shut down Gitmo or signing the NDAA -- most still believe that he is a liberal and, therefore, harmless. Maybe it's because he's black or because he's from Chicago and once belonged to a church with a radical pastor. Maybe it's because Fox News has been telling everyone that he's a pinko for four years. Or maybe it's because he doesn't seem to support policies designed to thwart abortion and gay rights. That last one earns him lots of points with my self-proclaimed liberal friends, and as a lifelong Democrat, I applaud the president. I support gay rights myself, but getting to marry the man you love kind of sucks if you're picked up and jailed indefinitely an hour after the wedding because you have too much food or too few fingers.


As of this morning, to our knowledge, reading Cracked would not put you on a watch list. Not for terrorism, anyway.

If Obama is a liberal, then perhaps the NDAA is his attempt to create true equality. Think about it: Now a married gay man, or a nun, or an abortionist, or even a celibate atheist can be locked up indefinitely with no access to counsel just for suspected terrorist affiliations, with no requirement of proof. We are truly united. Perhaps Obama has a dream about a day where every man, woman and child can be misjudged, not by the color of their skin or the content of their character, but by the flaws of a terrifying piece of legislation that could never exist in the hands of any president, authority or human being without being horribly abused.

They say "Only Nixon could go to China," meaning that only a president who built his career by cracking down on communism could have the political clout to open relations with a communist country. But in the same way, I worry that only a man perceived to be as liberal as Obama could get away with compromising our freedom.

#2. They Think the Law Was Nothing More Than a "Dirty Republican Trick"

At this point, the president's biggest supporters are probably pretty upset that I've fallen for a simple dirty Republican trick. See, that's why they're not talking about the NDAA. Because to them, it was just a GOP ploy to get Obama to sign away civil liberties, knowing that if he refused, he would be crucified in the press as denying our troops the aid and support they need. (Remember, the NDAA is mostly a bill providing monies for our defense.) He didn't want to sign it; he just had to. No shortage of people have argued that point to me.

Really, Democrats? The Republicans were insistent that their sworn enemy, Barack Obama, be given unbridled power? That sounds just like them.

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And after we trick him into getting all that power from the NDAA, let's force him to get bitten by one of those tiny radioactive spiders, too!

But there are more problems with this theory. For one, no one can explain how Obama's hands were tied. Does anyone really believe that Obama's choices were to destroy due process or be called a president who doesn't support the troops? If Obama sincerely opposed this provision, he could have gone on air and said, "Y'know, I want to do nothing more than send our troops aid, but, y'see, the Republicans insist that I can only do so if I have the power to imprison people indefinitely without counsel based only on a suspicion of aiding our enemies. So, y'know, please write your congressmen and let them know that that's just not what we believe in as Americans."

Had Obama done that, every self-proclaimed libertarian and liberal, and at least half the Republicans I know, would have praised him. Remember, liberals are supposed to love the Constitution, and conservatives are supposed to fear the powers of a growing government. There's nothing believable about Obama being forced to sign the NDAA for fear of political fallout.

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"Sorry, Mr. President. When you explained that you didn't want the power to jail me forever without a formal trial or access to a lawyer, you lost my vote. Hippie."

But there's an even better reason that theory can't be true. Last May, Katherine Forrest, an Obama-appointed United States District Court judge for the Southern District of New York, issued an order preventing the administration from enforcing the contested provision that so many people believe the president never wanted to sign in the first place. Did the president breathe a sigh of relief, laughing to himself that justice won out and the Republican trick had failed? Of course not. The administration's lawyers appealed the ruling to a higher court, opposing the decision, just as they had opposed the journalists who brought the action originally. And last week, the government succeeded in getting a panel of judges to set the ruling aside.

The original decision is certainly worth reading, especially for anyone who felt that the NDAA was no big thing because all those excessive powers already existed under the Bush administration. It is a point that Forrest rejects, but, regardless, I thought Obama campaigned on a platform opposing those governmental abuses, instead of engaging in protracted legal battles to ensure their survival.

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