Media coverage coming into the year 2012 focused on the Republican debates for the United States Presidency, growing concerns about Iran’s nuclear capabilities and possible sanctions for Syria. However, less attention was paid to President Obama’s signing of the National Defense Authorization Act (NDAA) for Fiscal Year 2012, a measure that contains controversial guidelines related to counterterrorism and treatment of foreign detainees.

The NDAA authorizes the budgetary spending of both the Department of Defense and national security programs that fall under the umbrella of the Department of Energy. In its approximate 50 years of existence, it has been charged with “common defense” and protecting "American Democracy." A particular subsection of the NDAA – “Section D” – regulates briefings for counterterrorism purposes, military custody for al Qaeda members, the status of detainees, and so on.

Proponents of the Act assert that it protects American interests and aids in fighting terrorism. Moreover, they claim that it attempts to take proactive steps, noting the lack of government planning prior to September 11, 2001. Trying terrorists for acts of terrorism is a tricky business that generally involves legal loopholes; the NDAA attempts to avoid common legal blunders by specifying the scope of the president’s authority, rights and privileges of detainees and the length of time for which detainees can be held.  Advocates also note that NDAA essentially carries out the functions of the Authorization for Use of Military Force (AUMF), except that the Armed Forces are allowed to collect detainees. The NDAA is also not applicable to United States citizens, although opponents claim that the wording of the Act makes this debatable.

However, those who oppose the Act argue that it intrudes upon civil liberties. Section 1021 and 1022 of the Act note that detained individuals are not granted the right to a trial until “hostilities” are judged to have “ended” and detainees do not have access to a lawyer.

Such vague wording is the focus of much of the debate surrounding the NDAA. According to the Act, detention may occur if an individual is suspected of affiliation with a terrorist organization:

A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. (H.R. 1540, section 1021)

The use of Armed Military Forces in the strategy has also attracted attention, mainly from political analysts and civilians with family and business ties abroad that are concerned about the broad net that Congress has now cast in the counterterrorism battle.

Advocates the NDAA 2012 state that the Act protects civilians and the United States from future attacks; opponents argue that the beginning of the end of civil liberties has begun. Growing frustrations around the PATRIOT Act, coupled with the newer provisions of the NDAA, have caused American citizens to wonder if they are next in line in the “War against Terror.” The fundamental question remains: does the National Defense Authorization Act of 2012 protect American Democracy, or is it hypocrisy in the making?

Submitted by Ashlie Perry

The opinions expressed are those of the author, and do not represent the opinions of Rutgers University or the Division of Global Affairs.