The Real Problem with the National Defense Authorization Act

January 2, 2012

By Laurence M. Vance

For each of the past forty-eight years, Congress has passed the misnamed National Defense Authorization Act to set forth the budget of the Defense Department. President Obama just signed into law the latest version of the NDAA, but not without some controversy.

The House originally passed this 1145-page bill (H.R.1540) back on May 26 by a vote of 322-96. Only six Republicans voted against the bill (Justin Amash, John Campbell, Jason Chaffetz, John Duncan, Tom McClintock, & Ron Paul).

The 926-page Senate version of the bill (S.1867) was passed on December 1 by a vote of 93-7. Only three Republicans voted against the bill (Tom Coburn, Mike Lee, & Rand Paul). The Senate then incorporated the measure in a now 908-page H.R.1540 as an amendment.

The original House bill contained an affirmation in section 1034 that the president has "the authority to detain belligerents," until "the termination of hostilities," including persons who "(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or (B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A)."

But it is the Senate version that, as amended in two ways, raised such a firestorm of controversy.

Conservative, religious, and animal-rights groups were upset with a provision in the Senate bill seen as legalizing sodomy and bestiality in the military. The Senate bill simply says, buried in division A – DEPARTMENT OF DEFENSE AUTHORIZATIONS, title V – MILITARY PERSONNEL POLICY, subtitle E – Military Justice and Legal Matters Generally, section 551 – REFORM OF OFFENSES RELATING TO RAPE, SEXUAL ASSAULT, AND OTHER SEXUAL MISCONDUCT UNDER THE UNIFORM CODE OF MILITARY JUSTICE, (d) REPEAL OF SODOMY ARTICLE, that "Section 925 of such title (article 125 of the Uniform Code of Military Justice) is repealed." This is a reference to title 10, subtitle A, part II, chapter 47, subchapter 10, section 925 of U.S. Code, which states:

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.

(b) Any person found guilty of sodomy shall by punished as a court-martial may direct.

Section 125 of the UCMJ adds this explanation:

It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.

The Senate bill also directed that the two other mentions of sodomy in U.S. Code title 10, subtitle A, part II, chapter 47, subchapter 8, section 843, and subchapter 10, section 918, be excised.

Civil libertarians of all stripes were upset with a provision in the Senate bill that would codify the power of the president to use the military to indefinitely intern anyone, without charges or trial, anywhere in the world – including American citizens on U.S. soil.

The most worrisome sections of the bill are found in division A, title X, subtitle D, sections 1031 and 1032. I give here the sections in their entirety because we will return to them later.

SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) IN GENERAL. – Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) COVERED PERSONS. – A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) 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.

(c) DISPOSITION UNDER LAW OF WAR. – The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) CONSTRUCTION. – Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) AUTHORITIES. – Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

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