Why the National Defense Authorization Act Now?

By Marti Hiken and Luke Hiken

Barack Obama just signed into law one of the most repressive and right-wing pieces of legislation ever passed in the history of the country: the 2012 National Defense Authorization Act (NDAA). It allows the military, a.k.a. the Pentagon, to determine who is a “terrorist” and to detain that person in prison, indefinitely, without trial, under its jurisdiction. It makes no difference whether the person is a U.S. citizen or a foreign “enemy combatant.”

The NDAA takes the civilian judicial system out of the equation regarding who is a “combatant” or “terrorist” and substitutes military command over every person inside or outside of the United States. By defining the entire U.S. as a battlefield, all the Pentagon needs to do, in order to exercise this power, is get the approval of the sitting president.

Historically in the U.S., questions of criminality were determined by civilian tribunals. The country has now yielded the principle of arrest, detainment, punishment, and imprisonment to executive privilege. This catapults American jurisprudence back into the reign of George the Third.



Although many progressive figures have stated that this is a “major step toward a police-state, but we are not there yet,” the reality is that this act is nothing short of a military coup, and one that transforms the authority of the president into the sort of military dictatorship that Augusto Pinochet, Kim Jung Il, and Bashar al-Assad would be proud of. While it is not surprising that a weak-kneed coward like Obama would acquiesce to the demands of the military, one must wonder why the Pentagon, at this time, would insist upon the authority to undermine the U.S. Constitution and establish a military/police state.

After all, there is no threat from within to our peace and security. There is no nation on earth that could even fantasize about waging war with our bellicose government. Why did not the Pentagon wait until there was a real, or meaningful threat to the U.S. before doing away with practically 300 years of American jurisprudence? The answer is clear: with the passage and signing of this bill, there has been a military coup that has taken place, and the identity of the individual in the White House and the bought-off congressional representatives no longer have anything to do with who is making the decisions in this country, either internationally or domestically.

It is obvious that the corporations that benefit from drones and endless assaults on the world’s people, would insist upon unregulated, unlimited power, but what is astonishing is that the American people would allow this coup to take place without so much as an objection. We have become so intimidated, uneducated, and propagandized as a nation that we permit Police, the Pentagon and “Private Contractors” to govern our lives.

What are the implications of the Pentagon and its corporate allies deciding to dismember the Constitution at this time:

1) They are saying that the military/corporate complex is in charge, and electoral politics mean nothing;

2) They are warning those who would criticize our foreign or domestic policies that the consequences of excessive criticism could land you in jail for the rest of your life, or that it could be fatal;

3) They are saying that our civilian judicial system is now subordinate to military control and domination;

4) They are telling the American people that dissent is dangerous, and outside the law;

5) They are informing the world that the true masters have stepped forward from the shadows to demonstrate that Americans are no more in control of their own government than the citizens of any fascist regime in the world;

6) They are reinforcing the concept that we are in a perpetual state of war, and that there will never again be periods of peace; and,

7) They are saying that obedience, and not democracy, is the order of the day.

In sum, the passage of this legislation is nothing short of a consolidation of state power into the hands of the military and its corporate allies. By passing these laws during the presidency of a self-identified Democrat, the Pentagon can claim widespread national support for their theft of the American economy and its transformation into an imperial empire. In order to continue spending 50 – 75% of the American budget on wars of aggression and the ongoing development of weapons and machinery of destruction, the Pentagon has to be certain that it can control a potentially rebellious populace.

Knowing what an opportunistic sham Obama is, and recognizing that his only goal is to remain in office, the Pentagon can continue to define our foreign policy as one of permanent war, and reap the financial advantages that flow from having a Republican Congress, and an unprincipled president in the White House.

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Marti Hiken is the director of Progressive Avenues. She is the former Associate Director of the Institute for Public Accuracy and former chair of the National Lawyers Guild Military Law Task Force.

Luke Hiken is an attorney who has engaged in the practice of criminal, military, immigration, and appellate law.