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Opinion: Fear unfounded: Civil liberties and the 2012 Defense Authorization Act

Thursday, January 12, 2012

If Congress passed a law for collegiate sporting events, stating that "air horns could under no circumstances be played or employed to produce sounds in or near collegiate sporting events, whether intercollegiate or intramural," we would conclude that NCAA football games would be safe from the earsplitting devices.

Anyone arguing, therefore, that this legislation was making it likely that air horns would be more common in stadiums would be met with questions about their ability to read legislation.

This is a useful comparison to unwarranted concerns about the National Defense Authorization Act, legislation passed by Congress and signed by President Obama, allocating $670 billion to the Pentagon for this fiscal year.

The most disputed provisions of the NDAA concern authorizing the U.S. military to detain terrorism suspects.

A few members of Congress, including hyperlibertarians such as Democrat Jerome Nadler and Republican Ron Paul (who argued that Osama bin Laden should have been arrested instead of killed) argued that the legislation would lead to the indefinite detention of American citizens, without charge, by the U.S. military.

In fact, the NDAA not only does not empower the U.S. military to detain American citizens indefinitely, it specifically prohibits this.

The relevant passage under "Applicability to United States Citizens and Lawful Resident Aliens" states that: "The requirement to detain a person in military custody under this section does not extend to citizens of the United States."

Many of the same opponents of this legislation also want to grant the same civil rights to al-Qaida terrorists as are enjoyed by U.S. citizens, including full access to U.S. courts, taxpayer-funded defense attorneys and the ability to use trials as platforms to preach violent jihad in the U.S. media.

For good reason, even the Obama administration, which had promised to try al-Qaida detainees in the United States, backed down from this once it realized the mockery that Khalid Sheikh Mohammed and other terrorists would have made of our legal system.

The NDAA confirms as U.S. law the practice that foreign terrorists such as these will be held indefinitely by the U.S. military. Indeed, this is a far more generous policy than allowed under international law.

While armed and uniformed combatants do deserve rights under the Geneva Conventions, terrorists do not. In fact, illegal armed combatants -- civilian German snipers, for example -- who fired at U.S. soldiers during World War II were routinely executed on the spot.

While the ACLU and Ron Paul may whine about the loss of liberty by terrorists and complain about nonexistent threats to our freedoms within a law that specifically prohibits these threats, even the Obama administration agreed that the NDAA would not result in indefinite detentions of U.S. citizens or permanent residents.

There continue to be American citizens who are misguided or evil enough to aid terrorism or even directly engage in these acts themselves. While perhaps they should be detained indefinitely alongside the terrorists with whom they share a hateful ideology, the NDAA does not authorize this.

American citizens, even those accused of betraying our nation and civilization, will continue to enjoy the same legal protections as before the legislation.

This is not to say that there are not threats to our liberties -- especially our economic ones -- emanating from this administration.

In the case of the NDAA, the threats are all against the foreign terrorists who are at the heart of global Islamic jihad. The more of them who are indefinitely detained at Guantnamo Bay, the safer the world will be.

Wayne H. Bowen is a professor and chairman of the Department of History at Southeast Missouri State University.

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Thank you Professor Bowen, for thoughtful analysis, rather than nonproductive shrieking. You have added significantly to public debate and discourse.

-- Posted by VIKED on Thu, Jan 12, 2012, at 6:23 AM

Wayne Bowen,

If you had read this first...


...perhaps you would not have written your false and misleading drivel.


-- Posted by ironboltbruce on Thu, Jan 12, 2012, at 7:12 PM

Two words Professor Bowen: Bull Crap!

-- Posted by mobushwhacker on Thu, Jan 12, 2012, at 7:26 PM


-- Posted by mobushwhacker on Thu, Jan 12, 2012, at 7:28 PM

I fail to see how a bill that does not require something, bans that thing. President Obama must not either, else why would he feel the need to state that he won't do the the thing that he is not required to do?

I fail to see anywhere in any of the recorded discussion among the founding fathers where they thought that trusting the a government functionary's word not to do something evil was sufficient.

I fail to see how any citizen of the United States could ever permit even the slightest abrogation or negation of our Bill of Rights. I fail to understand why educated persons such as you, Professor Bowen, are not engaged in daily protests of, e.g. the Patriot Act's elision of the right to a Writ of Habeas Corpus.

Brave men risked everything they had including their very lives to secure these rights, and now people like you want to toss them away so that you can feel "safe" from boogymen, while you mock those who respect, and attempt to preserve, what our founding fathers accomplished. For shame!

-- Posted by randyleepublic on Fri, Jan 13, 2012, at 7:41 AM

BTW, your grandmother and grandfather would be shocked that you have so little regard for our Constitution. They would turn you over their knee, and disown your parents for raising such a worthless food blister.

-- Posted by randyleepublic on Fri, Jan 13, 2012, at 7:44 AM

Totally amazing that anyone would even dare to defend this Bill, I won't even waste my time to argue the article.

I found this article through a tweet from JoAnn Emerson, who through her positive vote on the NDAA, will not see my vote for her re-election campaign.

If politicians cannot understand the "rule of law" and the United States Constitution, they do not need to be holding an elected office. By voting for this Bill, Ms. Emerson failed to keep her Oath to protect our Constitution.

Time to clean the House, folks.

-- Posted by WomanMarine on Fri, Jan 13, 2012, at 4:29 PM

One thing to note. When something bad happens and the government tells you to go 'here'. Whatever you do; don't got 'here'. Go somewhere else!

-- Posted by bebo on Sat, Jan 14, 2012, at 9:00 AM

All the hyperbole in the world does not change the facts. Our troops must be funded , Americans are excluded from detention, and the Constitution prevails.

-- Posted by VIKED on Sat, Jan 14, 2012, at 4:53 PM

JoAnn doesn't read the bills Give her a break

-- Posted by byejoann on Sat, Jan 14, 2012, at 7:54 PM

VIKED, you obviously have access to the Internet, use it to educate yourself.


Any politician that voted to approve this Bill has done a disservice to their constituents and importantly to the United States Constitution, which some consider a treasonous act.

Are you also aware of the fact that there were two Bills on the floor to remove the language, that is offensive and a determent to United States Citizens, their rights and liberties, neither were approved.

I believe that is more than a telling sign of where these folks what to take us.

-- Posted by WomanMarine on Sun, Jan 15, 2012, at 8:44 AM

Woman Marine,


and thank you for your service.

-- Posted by Semoan on Sun, Jan 15, 2012, at 4:06 PM

This seems pretty well thought out. It suggests to me that this article is nonsensical, biased, and funded by insiders.


-- Posted by 2manyInsiders on Mon, Jan 16, 2012, at 8:54 PM


Wayne Bowen is a xenophobe.

-- Posted by progressive on Wed, Jan 18, 2012, at 6:48 PM

I am shocked and amazed that a Professor and Chairman of a History Department at a University has so neglected to do his homework that he puts out such blatantly false information on such an important topic as the National Defense Authorization Act.

The NDAA does exactly what its sponsors, such as Senators Graham, McCain and Levin, said it would do. It gives the U.S. the status of a "battlefield" and it authorizes the warrantless "capture" of "covered persons" including U.S. citizens, including in the U.S., to be detained indefinitely without benefit of trail.

Even the President acknowledged this broad power in his signing statement of the bill, but assured us his administration would not use such authority. That is not much assurance considering he has already had three American citizens assassinated by executive order.

The provision that he cites as protecting citizens, "The requirement to detain a person in military custody under this section does not extend to citizens of the United States..." , simply removes the requirement that the military "shall hold" a "covered person" (which includes citizens) under section 1022 to "may hold" citizens. Also this qualification does not apply to section 1021 which has a broader targeting profile than section 1022 and within which 1022 is contained.

This section of the bill was sophisticatedly written to deceive and apparently it has done its job with the help of "controlled confusion" and "controlled opposition".

For more information go to www.theintolerableacts.org .

Richard D. Fry

General Counsel

Patriot Coalition

-- Posted by R D Fry on Wed, Feb 8, 2012, at 4:02 PM

Sections 1021 and 1022 attack no fewer than 14 provisions of the Constitution and Bill of Rights.

It greatly expands the scope of, and targeting profile of covered persons under the 2001 Authorization for the Use of Military Force.

I would encourage the article's author and the professor to "read" the Patriot Coalition/Oath Keepers (P.C.O.K.) NDAA resolutions at: http://theintolerableacts.org

NOWHERE in the NDAA is there a "prohibition" on the detention of Americans by the military. In fact, President Obama has already assassinated an American Citizen in Yemen. Despite what that alleged terrorist had done, he still was entitled to "due process" under the Constitution, regardless of the severity of his alleged crimes, and regardless of where in the world they took place. Also, grouping all the "terrorist-types" into one category is naive, and/or ignorant. It also makes a difference where the crime was committed, and by whom. Was the crime committed by a U.S. Citizen? Was it on a "foreign battlefield?"

It seems to me that neither the good professor, nor the author of this article has read the U.S. Constitution, the Bill of Rights, the Hague and Geneva Conventions, nor the Law of War Handbook.

Our resolution was introduced in the Oklahoma Legislature on Feb. 3, 2012 by Rep. Charles Key, and will be introduced in North Carolina and other states in the coming weeks. We've also prepared resolutions for sheriffs and county commissioners across the country. Like most Members of Congress who signed off on this bill, the professor and author didn't do their homework. Like Jefferson advised, we're trying to "inform your discretion through education."

God Bless America, and those that defend Her!

Jeff Lewis

National Director

Patriot Coalition

-- Posted by PatriotWatchdog on Wed, Feb 8, 2012, at 4:35 PM

Academic theory vs. military law. Sections 1021 and 1022 are the most egregious of this law and warrant a harsh look into reality. Do your homework, sir, and you will find one section is written in past tense referring to the provisions of the Patriot Act while the other is written in future tense. NDAA DOES PLACE US UNDER MARTIAL LAW and guts the 4th amendment/due process. And "extraordinary rendition" allows them to send us out of the country for punishment. www.theintolerableacts.org is a project by Stewart Rhodes, Yale grad and military law expert, Richard D. Fry, Constitutional law attorney and Jeff Lewis, National Director of the Patriot Coalition. Please feel free to challenge the work they have done on this subject. Meanwhile, the last thing Americans need is an article telling them they are "safe" when they are clearly not.

-- Posted by kspatriot on Fri, Feb 10, 2012, at 7:32 AM

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Wayne Bowen
The Pen and the Sword
Wayne Bowen received his Ph.D. in history from Northwestern University, and is also an Army veteran.