Artvoice: Buffalo's #1 Newsweekly
Home Blogs Web Features Calendar Listings Artvoice TV Real Estate Classifieds Contact

National Defense Authorization Act Draws Fire

Filed under: National Politics

A bill drawn up by the US Senate Committee on Armed Services includes a provision that would declare that any individual (American or not) could be arrested by the US military anywhere in the world—including the US—and be imprisoned without trial or charge indefinitely.

According to Republican South Carolina Senator Lindsay Graham, the bill will “basically say in law for the first time that the homeland is part of the battlefield.”

The bill, drawn up by Sens. Carl Levin (D-MI) and John McCain (R-AZ), was drafted in secret and is up for a Senate vote. Colorado Senator Mark Udall has introduced an amendment, hoping to tweak what the ACLU is calling “bad legislation.” President Obama is expected to veto the bill if the over-reaching language is not changed.

The bill is massive, and includes other ingenious provisions like Section 861: PROHIBITION ON CONTRACTING WITH THE ENEMY IN THE UNITED STATES CENTRAL COMMAND THEATER OF OPERATIONS.

    (a) Prohibition-
      (1) IN GENERAL- Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to authorize the head of a contracting activity, pursuant to a request from the Commander of the United States Central Command under subsection (c)(2)–
        (A) to restrict the award of Department of Defense contracts, grants, or cooperative agreements that the head of the contracting activity determines in writing would provide funding directly or indirectly to a person or entity that has been identified by the Commander of the United States Central Command as actively supporting an insurgency or otherwise actively opposing United States or coalition forces in a contingency operation in the United States Central Command theater of operations;
        (B) to terminate for default any Department contract, grant, or cooperative agreement upon a written determination by the head of the contracting activity that the contractor, or the recipient of the grant or cooperative agreement, has failed to exercise due diligence to ensure that none of the funds received under the contract, grant, or cooperative agreement are provided directly or indirectly to a person or entity who is actively supporting an insurgency or otherwise actively opposing United States or coalition forces in a contingency operation in the United States Central Command theater of operations; or
        (C) to void in whole or in part any Department contract, grant, or cooperative agreement upon a written determination by the head of the contracting activity that the contract, grant, or cooperative agreement provides funding directly or indirectly to a person or entity that has been identified by the Commander of the United States Central Command as actively supporting an insurgency or otherwise actively opposing United States or coalition forces in a contingency operation in the United States Central Command theater of operations.
      (2) TREATMENT AS VOID- For purposes of this section:
        (A) A contract, grant, or cooperative agreement that is void is unenforceable as contrary to public policy.
        (B) A contract, grant, or cooperative agreement that is void in part is unenforceable as contrary to public policy with regard to a segregable task or effort under the contract, grant, or cooperative agreement.
    (b) Contract Clause-
      (1) IN GENERAL- Not later than 30 days after the date of the enactment of this Act, the Secretary shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that–
        (A) the clause described in paragraph (2) shall be included in each covered contract, grant, and cooperative agreement of the Department that is awarded on or after the date of the enactment of this Act; and
        (B) to the maximum extent practicable, each covered contract, grant, and cooperative agreement of the Department that is awarded before the date of the enactment of this Act shall be modified to include the clause described in paragraph (2).
      (2) CLAUSE DESCRIBED- The clause described in this paragraph is a clause that–
        (A) requires the contractor, or the recipient of the grant or cooperative agreement, to exercise due diligence to ensure that none of the funds received under the contract, grant, or cooperative agreement are provided directly or indirectly to a person or entity who is actively supporting an insurgency or otherwise actively opposing United States or coalition forces in a contingency operation; and
        (B) notifies the contractor, or the recipient of the grant or cooperative agreement, of the authority of the head of the contracting activity to terminate or void the contract, grant, or cooperative agreement, in whole or in part, as provided in subsection (a).
      (3) COVERED CONTRACT, GRANT, OR COOPERATIVE AGREEMENT- In this subsection, the term `covered contract, grant, or cooperative agreement’ means a contract, grant, or cooperative agreement with an estimated value in excess of $100,000 that will be performed in the United States Central Command theater of operations.
    (c) Identification of Contracts With Supporters of the Enemy-
      (1) IN GENERAL- Not later than 30 days after the date of the enactment of this Act, the Secretary, acting through the Commander of the United States Central Command, shall establish a program to use available intelligence to review persons and entities who receive United States funds through contracts, grants, and cooperative agreements performed in the United States Central Command theater of operations and identify any such persons and entities who are actively supporting an insurgency or otherwise actively opposing United States or coalition forces in a contingency operation.
      (2) NOTICE TO CONTRACTING ACTIVITIES- If the Commander of the United States Central Command, acting pursuant to the program required by paragraph (1), identifies a person or entity as actively supporting an insurgency or otherwise actively opposing United States or coalition forces in a contingency operation, the Commander may notify the head of a contracting activity in writing of such identification and request that the head of the contracting activity exercise the authority provided in subsection (a) with regard to any contracts, grants, or cooperative agreements that provide funding directly or indirectly to the person or entity.
      (3) PROTECTION OF CLASSIFIED INFORMATION- Classified information relied upon by the Commander of the United States Central Command to make an identification in accordance with this subsection may not be disclosed to a contractor or a recipient of a grant or cooperative agreement with respect to which an action is taken pursuant to the authority provided in subsection (a), or to their representatives, in the absence of a protective order issued by a court of competent jurisdiction established under Article III of the Constitution of the United States that specifically addresses the conditions upon which such classified information may be so disclosed.
    (d) Nondelegation of Responsibilities-
      (1) CONTRACT ACTIONS- The authority provided by subsection (a) to restrict, terminate, or void contracts, grants, and cooperative agreements may not be delegated below the level of the head of a contracting activity.
      (2) IDENTIFICATION OF SUPPORT OF ENEMY- The authority to make an identification under subsection (c)(1) may not be delegated below the level of the Commander of the United States Central Command.
    (e) Contracts, Grants, and Cooperative Agreements of Other Federal Agencies- This section shall not be construed to preclude the issuance of a government-wide regulation–
      (1) extending the authority in subsection (a) to the heads of contracting agencies outside the Department; or
      (2) requiring the insertion of a contract clause similar to the clause described by subsection (b)(2) into contracts, grants, and cooperative agreements awarded by Federal agencies other than the Department.
    (f) Reports- Not later than March 1 of each of 2013, 2014, and 2015, the Secretary shall submit to the congressional defense committees a report on the use of the authority provided by this section in the preceding calendar year. Each report shall identify, for the calendar year covered by such report, each instance in which the Department of Defense exercised the authority to restrict, terminate, or void contracts, grants, and cooperative agreements pursuant to subsection (a) and explain the basis for the action taken. Any report under this subsection may be submitted in classified form.
    (g) Other Definition- In this section, the term `contingency operation’ has the meaning given that term in section 101(a)(13) of title 10, United States Code.
      (h) Sunset- The authority to restrict, terminate, or void contracts, grants, and cooperative agreements pursuant to subsection (a) shall cease to be effective on the date that is three years after the date of the enactment of this Act.

Seems like a good idea. How long have we been at war now? Too bad it would only apply for three years.