Going the Unconstitutional Extra Mile?

By: Francisco Beltrán •

“This is a war. If we aren’t willing to do what it takes to win, we risk losing everything we try to protect. Unfortunately, war tends to distort our point of view. If we sacrifice our code, even for victory, we may loose that which is most important, our honor.”  -Star Wars: The Clone Wars, Season 3, Episode 20 [1]

It seems like a flashback to the Alien and Sedition Acts and McCarthyism. Last December President Obama signed the National Defense Authorization Act (NDAA), which allows the government to indefinitely detain any person anywhere, U.S. citizen or not, if suspected of terrorism without charge or trial. The official text reads: “Affirmation of authority of the armed forces of the United Statesto detain covered persons pursuant to the authorization for use of military force.” [2] A “covered” person is defined as a person who “was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities with the United States.” [3] The President stated his motive for signing the act being “chiefly because it authorizes funding for the defense of the United States” including “vital national security programs that must be renewed.” [4]

As Commander-in-Chief, Mr. Obama must do everything to protect the nation, but even he recognizes the dangers of NDAA. He told the New York Times in December, “The fact that I support this bill as a whole does not mean I agree with everything in it…I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.” [5] Furthermore, ABC News reported that some Obama administration officials were quoted saying the President strongly believes that the indefinite detainment of U.S. citizens without trial would “break with our traditions and values as a nation.” [6] Despite everything said, the fact became law.

In a statement released shortly after signing the NDAA, President Obama wrote, “I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens.”  But who’s to guarantee future presidents will follow suit? What about Congress? Among those who supported NDAA were Senators Marco Rubio (R-FLA) and John McCain (R-AZ), who upheld his support for indefinite detention last November saying: “As long as an individual, no matter who they are, if they pose a threat to the security of the United States of America, should not be allowed to continue that threat…” [7] Looks like Salem’s made quite a comeback. In a letter published by the Brevard Times, Senator Rubio explains his support for NDAA claiming it “affirms the authority of the executive branch to act within our national interest” by providing the federal government “with the tools that are needed to maintain our national security.” [8] He says that wouldn’t support NDAA if it authorized military patrolling or threatened equal protection under the 14th amendment. We’ll see about that. Opposition ranges across the spectrum, including from the American Civil Liberties Union (ACLU). Their website reads: “The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA.” [9] They claim NDAA violates international law because the breadth of its jurisdiction “is not limited to people captured in the context of an actual armed conflict as required by the laws of war.” [10] Based on this, we may be looking at the table setter of the coming socio-global conflict.

All Republican Presidential Candidates have spoken against NDAA but former Governor Mitt Romney. In a recent debate in South Carolina, Mr. Romney said he supported NDAA because “it is appropriate to have in our nation the capacity to detain people who are threats to our country.” [11] Though booed, he explained:

Look, you have every right in this country to protest and to express your views on a wide range of issues, but you don’t have a right to join a group that has challenged Americaand has threatened to kill Americans, has killed Americans, and has declared a war against America. That’s treason. In this country, we have a right to take those people and put them in jail. [12]

He successfully turned the crowd’s disapproval into a thunderous applause that sent shivers down my spine, eerily reminiscent of Chancellor Palpatine’s dissolution of theFreeRepublic.

On January 18 Representative Ron Paul (R-TX) presented legislation in the House floor to overturn the law’s controversial provisions. He argued NDAA essentially converts the U.S.military into a global police force able to detain anyone indefinitely without a right to an attorney. He says, “No right to attorney, no right to trial, no day in court. This is precisely the kind of egregious distortion of justice that Americans have always ridiculed in so many dictatorships overseas.” [13] Pulitzer Prize-winning journalist Chris Hedges speaking on Democracy Now! said NDAA is clearly unconstitutional because “it is a huge and egregious assault against our democracy” by overturning over 200 years of law that has kept the military out of domestic policing. [14] The ACLU adds, “The statute is particularly dangerous because it has no temporal or geographic limitations,” [15] empowering future presidents to detain anyone far from any physical battlefield. The injustices we detest and combat abroad seem to have found a new home at home.

Has prolonged conflict finally gotten to us or has media sensationalism done it again? We can’t be easily goated into granting emergency powers in desperation to the executive chair to ensure the common good, but haven’t our elected representatives done so already in our name? And how exactly do we determine who is a terrorist without racial profiling? We’ve already had a taste of NDAA, pre-NDAA, inArizona. Can NDAA become racist? SB1070 inArizonasure is, and maybe it won’t take NDAA long to profile the prototypical terrorist image, if it hasn’t done so already. Deciding who is and who isn’t a terrorist will unfortunately be up to whoever is sitting in the Oval Office, and that is frightening.

To me the NDAA text is vague and open to free interpretation. Though it does not directly contextualize applicability toU.S.citizens, it does not contain an exclusion clause either. The language essentially permits the government to detain anyone they label a “threat.” What truly concerns me is the vagueness of “associated forces.” Given the perfect situation, if interpreted by the wrong person or interest in power, just about anyone and everything could be considered dangerous. Is NDAA a “necessary evil” to gain the edge in the escalating war against terror? Let’s be honest: The war on terror is a worldwide chess game of ideological persuasion and dominion. The war zone is everywhere, and even then it does not condone the violation of our Bill of Rights. Though the word “treasonous” is a good a word as any to describe Congress’ decision to pass the bill, only time will judge right or wrong the actions of today.

No law should justify unlawful detainments anywhere in the world, even in the darkest of cases. We must ask ourselves: Does the ends justify the means? Sometimes our system is scapegoated as responsible for our shortcomings and failures. Our constitutional limitations are criticized as handicapping our ability to go far enough to achieve “total victory.” To me it is unethical and dangerous to go beyond our institutional capacity, even in a changed world like ours. I understand the threat posed by the enemy increases each time we fail to bring them under the scope of justice within our institutional limits. I understand that the art of war, no pun intended, has changed. It is theHiroshimadilemma all over again, except this time the atom bomb is our diminishing civil rights.

Is paralyzing the masses with fear worth the risk? Our judicial system cannot be applied differently to different people, regardless nationality or culture. If we are to truly demonstrate how unbiased, unprejudiced, and fair our systems of law and justice are, we mustn’t fall victim to emulating what has caused us much harm. The enemy has no one face but has multiple identities and growing followers. It will take time. Our ethical and moral values cannot be superseded to distort the principles of our nature and of our constitution, regardless if led to believe we must the cross the line of no return. We must remain incorruptible.

Now every time I think NDAA I can’t help but visualize an interrogation sequence between Samuel L. Jackson and Michael Sheen from the film Unthinkable. It may be an extreme comparison, but the idea is simple. War indeed distorts our points of views and yes, if we fail to do what is necessary to achieve victory we may risk losing everything we’ve fought to preserve. But when we sacrifice our principles, even for a cause beneficial to the common good, what becomes of our values, as a society and as human beings? Being the U.S. Commander-in-Chief is the hardest and most stressful job there is. I am sure the President’s decision to sign NDAA was a tough a choice as any. It takes strong individual character to make the difficult decisions no one else dares make. I just hope this decision does not become the domino that begins the downward tumble. Historically after all, some of the worst possible outcomes began with the best intentions possible. I pray this is not one of those instances.

Works Cited


De Nies, Yunji. “With Reservation, Obama Signs Act to Allow Detention of Citizens.” ABC News. 31

December 2011. 20 January 2012. http://abcnews.go.com/blogs/politics/2011/12/with-reservations-obama-signs-act-to-allow-detention-of-citizens/

Journalist Chris Hedges Sues Obama Admin over Indefinite Detention ofU.S.Citizens Approved in

NDAA [Video]. (2012). Retrieved 21 January 2012 from http://www.democracynow.org/2012/1/17/journalist_chris_hedges_sues_obama_admin

Lander, Mark. “After Struggle on Detainees, Obama Signs Defense Bill.” New York Times. 31 December

2011. 20 January 2012. http://www.nytimes.com/2012/01/01/us/politics/obama-signs-military-spending-bill.html

NDAA Floor Speech January 18 [Video]. (2012). Retrieved 21 January 2012 from


Sen. Rand Paul and Sen. McCain Speak on Detainees on Senate Floor – 11/29/11 [Video]. (2011).

Retrieved 21 January 2012 from http://www.youtube.com/watch?v=aUHh1iqe43w&feature=related

Simon, Amanda. “President Obama Sign Indefinite Detention Into Law.” Online Posting. 31 December

2011. Blog of Rights Because Freedom Can’t Blog Itself in American Civil Liberties Union. 20 January 2012. http://www.aclu.org/blog/tag/NDAA

Romney Admits He Would Have Signed The National Defense Authorization Act If He Were President

[Video]. (2012). Retrieved 21 January 2012 from http://www.youtube.com/watch?v=FUZoPnYjx0g

Rubio, Marco. “Senator Marco Rubio Defends NDAA.” Letter. Brevard Times. 19 December 2011. 21

January 2012. http://government.brevardtimes.com/2011/12/senator-marco-rubio-defends-ndaa.html

United States. House of Representatives. Committee on Rules. H.R. 1540: National Defense

Authorization Act for Fiscal Year 2012. Washington, 2011. 20 January 2012. http://www.rules.house.gov/Media/file/PDF_112_1/legislativetext/HR1540conf.pdf


[1] “Citadel Rescue.” Star Wars: The Clone Wars, Season Three. Disc 3, Episode 20. Dir. Dave Filoni. 2011. DVD. Warner Brothers. 2011.

[2] National Defense Authorization Act for Fiscal Year 2012, pp. 653-54.

[3] National Defense Authorization Act for Fiscal Year 2012, pp. 653-54.

[4] De Nies, 17-20.

[5] Lander, 14-19.

[6] De Nies, 23-24.

[7] Sen. Rand Paul and Sen. McCain Speak on Detainees on Senate Floor – 11/29/11 [Video]

[8] Rubio Letter to Brevard Times

[9] Simon, 19-20

[10] Ibid, 22-23.

[11] Romney Admits He Would Have Signed The National Defense Authorization Act If He Were President


[12] Romney Admits He Would Have Signed The National Defense Authorization Act If He Were President


[13] NDAA Floor Speech January 18 [Video]

[14] Journalist Chris Hedges Sues Obama Admin over Indefinite Detention ofU.S. Citizens Approved in

NDAA [Video]

[15] Simon, 13-15.


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