The NDAA (National Defense Authorization Act) and CISPA (Cyber Intelligence Sharing and Protection Act) are back in the news this week, a development that may come as a wearying surprise to many who want to protect citizens' rights around the world and may have assumed that discussion of these controversial bills had given way to new battles.
But the truth is the NDAA never went away, and CISPA is rearing its ugly head once again, despite its unceremonious death last year after citizens concerned it would infringe on their rights launched a concerted effort to ensure it was never enacted in the United States.
First, the NDAA. This law, which was once little more than an annual spending bill Congress routinely passed each year to authorize funding for the U.S. military, has over the past couple of years become one of the most controversial flashpoints in the unending struggle to preserve Americans' basic rights.
Civil liberties advocates have been greatly concerned about a number of provisions that have been added to the bill in recent years, and one has been the main focus, as it has the potential to be the most detrimental to the freedom of Americans around the globe.
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That part of the law is known as the "indefinite detention" provision, and since it was first codified into law last winter, it has made it lawful for a president to authorize the U.S. armed forces to detain American citizens engaged in certain loosely defined activities related to terrorism for an indefinite period of time without charging them with a crime or granting them access to a lawyer or a speedy trial.
That highly questionable provision -- combined with others such as one that makes it virtually impossible for President Barack Obama to make good on his 2008 campaign promise to close the Guantanamo Bay prison facility in Cuba -- has made the NDAA one of the most-reviled laws in recent memory. And Congress has passed it and Obama has gone ahead and signed it for the past two years, despite the presence of these provisions in both years' versions of the bill.
But the judiciary is also in on the action, and on Wednesday a federal court in Manhattan heard arguments in a case that questions the legality of the law as it stands today. Pitting plaintiffs including former New York Times reporter and writer Chris Hedges and Pentagon Papers whistleblower Daniel Ellsberg against the Obama administration, the case is likely the most significant legal challenge yet to a law that opponents consider an unconstitutional threat to basic human rights.
The Wednesday hearing was scheduled in September after the Obama administration appealed a ruling by a U.S. District Court judge that struck down the indefinite detention portion of the bill as unconstitutional.
So on Wednesday attorneys for the Obama administration argued that civil liberties are not threatened under the NDAA, stating that the plaintiffs' concerns about such a scenario are based on "a fundamentally flawed reading of the law" as "this statute simply does not apply to them" as journalists, the Huffington Post reported. That argument was made in reference to a section of the language in the NDAA that states that the indefinite detention clause applies to American citizens who "substantially supported" al Qaeda or its allies as reported by Business Insider below:
"The president also has the authority to detain persons who were part of or substantially supported, Taliban or al-Qaida forces 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 hostilities, in the aid of such enemy forces."
But Bruce Afran, an attorney for the plaintiffs, stated Wednesday that the law is "dictatorial" in nature, and that "if this power is upheld, it means that Americans can be subject to military imprisonment," the Huffington Post reported.
Anyone interested in the future of civil rights in America should continue to follow this important case, as it is at the epicenter of the debate over the powers the executive branch should be able to reserve in the name of fighting terrorism and promoting national security.
CISPA is at the center of another major debate currently raging in American political circles centering on the future of Internet privacy. As Congress and companies become more web-savvy, there have been an increasing number of attempts to pass bills ostensibly aimed at protecting Internet users and ending copyright infringement.
CISPA is one of the most well-known of these laws, and it is back again after dying under threat of presidential veto last spring. U.S. Rep. Dutch Ruppersberger (D-Md.) and House Intelligence Committee Chairman Mike Rogers (R-Mich.) have announced that they are looking to revive the bill later this year, and that they are currently hammering out the details with the White House in the hope that the legislation can get Obama's approval this time around, according to the political newspaper The Hill.
"We're working on some things … working with the White House to make sure that hopefully they can be more supportive of our bill than they were the last time," Ruppersberger told The Hill.
The bill's supporters, including many major corporations, said it was aimed at stopping cybercrime by lowering barriers to communication between the private sector and intelligence agencies. It was vehemently opposed last year by civil liberties and privacy groups who maintained that by increasing the ease with which authorities could access online communications would be an unprecedented incursion into people's online privacy rights.
A massive online campaign against the bill seemed to have some impact on drawing attention to its possible dangers, including the ones that concerned the Obama administration.
But the bill was not stopped dead in the tracks even in light of last year's presidential veto threat, as the U.S. House of Representatives passed it last spring, though the U.S. Senate henceforth failed to pursue it.
Cybersecurity has emerged as a hot-button issue this year, as increasing incidents of cyber-attacks and other online crimes worry world leaders and legislators alike. But privacy and civil rights groups continue to work diligently both to educate the public about, and to advocate against, legislation that would bring about unconstitutional incursions into people's rights to privacy and free communication.
So though it's a new year, the NDAA and CISPA are back in headlines, and the fight rages on.