The National Defense Authorization Act is discussed in two episodes of The Bob Zadek Show, in each case as the legislative vehicle for a policy that has little to do with funding the military. In the earlier episode, Judge Jim Gray cites the Act among a list of grievances against the federal government’s treatment of civil liberties. In the later episode, Warren Gibson and Bob Zadek trace a national service commission back to its inclusion in the Defense Authorization Bill.
Detention without trial
In the 2013 episode, Judge Jim Gray — described as having been the only one of six candidates for President or Vice President with military service, and as having been awarded a combat action ribbon in Vietnam — lists the National Defense Authorization Act as one of the reasons he left the Republican Party. He places it alongside the Patriot Act, which he calls a “direct frontal assault on our civil liberties,” and drone surveillance of Americans, which he says should require a judicial warrant and probable cause. Of the Act itself he says that under it “literally a citizen of the United States could be arrested and detained, you know, without trial forever, interminably,” and could be rendered, meaning sent to a foreign country, all without charges. He concludes: “That is not what we stand for.” We Are All Libertarians (2013)
Gray’s objection is framed as part of a broader argument about the “soul” of the United States, which he identifies with its liberties and freedom, and which he says is “under attack today by our very own government.” The NDAA reference functions in his list as an example of that attack rather than as a subject of extended analysis; the episode’s discussion of defense policy is otherwise concerned with military spending, foreign bases, and whether a standing army is still necessary.
The commission and the Defense Authorization Bill
The 2020 episode concerns the final report of the National Commission on Military, National, and Public Service, issued March 25th of that year. Warren Gibson, identified as a retired professor of economics at San Jose State University, says the commission was included in the Defense Authorization Bill in the last month of the Obama administration, which he places in December of 2016. Bob Zadek agrees that the commission was formed under the Defense Authorization Act, which he describes as “the mega-omnibus spending bill which gives the military its money,” and notes that a defense authorization bill has “nothing whatever to do with public service.” Conscription Gets a Face Lift (2020)
Zadek’s stated purpose in the episode is to trace what he calls the life of the commission, and the NDAA is the starting point of that trace. His argument is that the commission began with a narrow authorization — he quotes its stated purpose as “analysis for sustaining and/or modernizing the Selective Service process” — and expanded to produce 164 recommendations addressing civic education, the federal workforce, national service programs, military service, and, last, the Selective Service System. He calls this “mission creep” and attributes it to the phrase “while we’re at it.” Gibson’s own account of the commission’s origin is more tentative: he says he is “not quite sure who was behind this or what the impetus was.”
Conscription, the draft, and the 13th Amendment
The substantive policy at issue in the 2020 episode is whether the commission’s recommendations point toward mandatory national service. Zadek introduces the topic by describing conscription as a system requiring that people “do what we say and serve what we want you to serve or else you’re going to go to jail,” and notes that France and Germany are experimenting with mandatory public service for young people. Gibson says the report received press attention chiefly for the idea that not just men but women should be subject to the draft, and that his response to it was visceral. Conscription Gets a Face Lift (2020)
Gibson states that the draft was ended but not abolished, that the Selective Service System continues in operation, and that every young man must register, which he places between ages 18 and 25. Zadek puts the upper age of liability at 26 and Gibson confirms it. Gibson notes that the Selective Service website offers a choice of male or female and states beneath the buttons that women are not registered at this time, so that the system is ready to register women. He argues that registering only men is discriminatory but that the commission proposed the wrong remedy: rather than doubling the pool of potential draftees, the draft should be eliminated.
On constitutionality, Zadek raises the 13th Amendment, which he says bans involuntary servitude and which he calls one of the Civil War amendments. Gibson describes a lawsuit filed in 1918 by a progressive group shortly after the draft was instituted for World War I, challenging the draft on 13th Amendment grounds and going to the Supreme Court, which in 1918 decided it was constitutional because Congress has the right to raise armies. Zadek supplies the phrase “raise and support armies.” Zadek then cites a piece by Ilya Somin, described as a frequent guest on the show, re-examining the constitutionality of the draft, citing the 1918 decision and concluding that it rested on a weak constitutional basis. Zadek characterizes the current state of the law as a “doctrine of weak constitutional law” and says there is a serious constitutional question to be re-examined.
Across episodes
The two episodes touch the National Defense Authorization Act from opposite directions and share no participants. In 2013, Judge Jim Gray cites the Act as an example of the federal government’s assault on civil liberties, in a list that also includes the Patriot Act and drone surveillance. In 2020, Bob Zadek and Warren Gibson treat the Defense Authorization Act as the must-pass bill through which a commission on military, national, and public service was created, and their concern is conscription and the 13th Amendment rather than detention. The excerpts show no development between the two treatments: the earlier episode does not mention the commission, and the later episode does not mention detention or the Patriot Act.
What the sources do not cover
The excerpts do not state the formal name or public law number of either the 2016 or any other Defense Authorization Act, nor the section numbers of the detention provisions Gray describes. They do not name the 1918 Supreme Court case, the progressive group that filed it, or the amendment or clause the Court relied on beyond the general reference to Congress’s power to raise and support armies. The excerpts also do not state whether the commission’s recommendations were adopted, or what became of the detention provisions after 2013.