2013 National Defense Authorization Act: The Good, the Bad and the Ugly

January 10, 2013 12:00 am
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In January of this year, President Obama signed the National Defense Authorization Act (NDAA) FY 2013. The defense bill has some important implications for civil liberties – some good, some bad, and some downright ugly. Here is a snapshot of what the 2013 NDAA means for civil liberties. Check out our blogs on the NDAA, including information on indefinite detention, Shaheen Amendment, provision that could lead to claims of a right to discriminate, and implications on Guantanamo Bay.


The decades-long ban on health insurance coverage for abortion for servicewomen and military dependents who are survivors of rape and incest was struck down.

The NDAA includes the Shaheen Amendment, a provision that gives servicewomen and military dependents who are survivors of rape and incest the same abortion coverage provided to other women enrolled in federal health care. Previously, servicewomen and members of military families seeking an abortion following rape or incest were singled out and denied insurance coverage.

The Shaheen Amendment received strong bi-partisan support in the House and Senate, as well as backing from dozens of military leaders including General Colin Powell, USA (Ret.), the former Chairman of the Joint Chiefs of Staff and the 65th United States Secretary of State.

More than 400,000 women serve in the armed forces and put their safety and lives at risk to preserve and protect our freedom. With the president’s signature, a decades-old policy that discriminated against our servicewomen and military families was struck down.

Read more:
Military Abortion Ban in Cases of Rape and Incest
Stand With Servicewomen (coalition site)


Language that could lead to claims of a right to discriminate.

The NDAA includes a troubling provision (Section 533) that compels the military to accommodate the conscience, moral principles, or religious beliefs of all members of the armed forces without accounting for the effect an accommodation would have.

Section 533 is problematic because it has the potential to give rise to dangerous claims of a right to discriminate against lesbian, gay, and bisexual service, women, religious minorities, and in the provision of health care.

In a signing statement that accompanied the NDAA, President Obama said that in implementing Section 533, the Department of Defense will “not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct.”

It is encouraging that the president recognizes why this provision is so problematic. Going forward, it is essential for the Department of Defense to ensure that no accommodation of religious belief or conscience can result in discrimination or harm to others.

Read more:
Using Religion to Discriminate


Guantánamo will remain open.

By signing the NDAA, Obama conceded to another round of transfer restrictions that constrain his ability to repatriate detainees home, to resettle them in third-party countries, or to prosecute them domestically in federal courts. Originally set to expire on March 27, the transfer restrictions will remain in place for another year. Eighty-six men, whom U.S. national security officials have already cleared for transfer, face another year in prison despite never being charged with a crime. The other 80 detainees have either been charged before military commissions, are in perpetual limbo as the government continues to weigh whether it can charge them with any crime, or have been declared to be subject to indefinite detention without charge or trial.

Their continued indefinite detention doesn’t only tarnish American values; it wastes scarce taxpayers’ dollars. The annual cost of imprisoning just one of the 166 detainees remaining at Guantánamo is $800,000. The cost of imprisoning one detainee at a federal maximum security prison: $35,000. To make matters worse, the federal government currently spends $69 million a year to keep the 86 men cleared for transfer, deemed no threat to U.S. national security, imprisoned at Guantánamo.

Despite threats to veto the NDAA over detainee transfer restrictions, the president has ensured that Guantánamo, along with indefinite detention and unconstitutional military commissions, will survive another year.

Read more:
Guantánamo by the Numbers [Infographic]

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