The United States Senate has just passed a resolution that as currently drafted, gives authority to the US military to indefinitely detain persons, even American citizens arrested on American soil or overseas without charge or trial. In other words, the federal government has the ability to openly detain American citizens, here or overseas, for their entire lives without so much as a single charge -denying US citizens their Article III rights to a jury trial. All it needs to do is declare you a terrorist- no proof needed and due process observed.
Tucked inconspicuously in the 682 pages of the, National Defense Authorization Act for Fiscal Year 2012 (NDAA), the Bill under the title ‘Detainee Matters’ in section 1031 and 1032, Congress has essentially given the Department of Defense the explicit power to take civilians into military custody and to indefinitely detain people suspected of terrorism activities with no charges or trial. People in Egypt, Tunisia, and Syria have engaged in revolutions to replace these undemocratic and unjust practices.
No doubt, codifying indefinite military detention into law is one of the most egregious developments since the passage of the PATRIOT Act in 2001. A close read of the relevant sections means that all control would be taken out of the hands of the civilian-controlled judicial system, and placed into the secretive and unaccountable domains of the American military. Are the Senators who signed onto the legislation calling for a military takeover of our justice system? Until now, the Department of Justice, the state and local law enforcement agencies have had the primary responsibility and the appropriate training to enforce anti-terrorist laws within the United States. The NDAA would, in the case of many civilian suspects, remove these entities from the process of investigation, arrest, criminal prosecution, and imprisonment and cede such powers over to the military.
Section 1031 of S. 1253 would be the first time in more than 60 years that our so-called representatives in Washington would allow indefinite detention of American citizens, with no charges or trial without Congressional authorization. If there was a case where liberty has been forsaken for temporary security as Ben Franklin so eloquently warned, this Bill is a prime example.
The US Senate has thus acted to render irrelevant the essence of our legal and judicial foundation: habeas corpus. According to Article I of the Constitution, it is a judicial mandate that requires that a prisoner is brought before the court to determine whether the government has the right to continue detaining them. The individual being held or their representative can petition the court for such a writ. The current Senate bill has in effect endorsed the notion that the government can do whatever it likes to any citizen, it merely suspects individuals of being involved in terrorism. And since the so-called war on terrorism is an open-ended war and knows no geographical demarcations, the entire framework of the constitution could disappear through a sinkhole. Do not be surprised when a terrorist attack is committed or is imminent, our government would authorize soldiers to break into our homes undeterred, round up any citizens the government deems suspicious, and deny them any recourse. We used to condemn countries for engaging in these practices against their own citizens. And now here we are doing it in these United States.
The Senate bill would let the government lock up any citizen it says is a terrorist, without the burden of proving its case to an independent judge, for the lifespan of a not-so-clearly defined war. And because the Senate used the bill that authorizes funding for the military as its vehicle for this dramatic constitutional claim, many Senators found an easy excuse to vote for the bill. But even if the intent of the legislation would leave the civil liberties of an overwhelming majority of Americans untouched, the checks and balances are inadequate. Even if we accept the supportive analysis of the two sections in full, we have to assume two things. First, the government will never make a mistake and, second, the government will never exceed its power. These are not very tenable expectations, which is why the nation’s Founding Fathers were prudent not to consider them. Now, in section 1031(b) (2), I do not see the requirement for a civilian judge to issue a warrant. So it appears this legislation directly violates the Fourth Amendment of the Constitution with regard to those rights which are inalienable, according to the Declaration of Independence, and should be inviolate as your birthright as an American citizen. Also, despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end.
Is it lawful for the president to order any American to be held indefinitely as a terrorist, without formal charges, the evidence presented in open court, a trial by jury, or a standard of “guilty beyond a reasonable doubt”? The U.S. Senate has ruled this to be a valid power. The shame of the Senate is evident by the number of Senators who voted for the bill: Forty eight Democrats and forty-four Republicans and one Independent. New Jersey’s two Senators, Robert Menendez, and Frank Lautenberg voted for the bill and made no public denouement of the unconstitutional sections.
It is worth noting that Senior Department of Justice, Department of Defense, and former administration officials warn these provisions will be a severe blow to our national security efforts and counterproductive to counter terrorism measures. Many Senators have so eloquently spoken against the sections in addition to strong statements from leading civil rights organizations. Senator Al Franklin (D-MN) represent this view, he said, “I fear the detention provisions in this bill forget the lessons we learned from the mistakes we made when we interned thousands of innocent Japanese, Germans, and Italians, or when we destroyed the lives of supposed communist sympathizers with nary a shred of evidence of guilt.”
Fortunately, the House version of the bill (H.R. 1540) does not include the troublesome language. But we fear that when the two bills are merged, these sections will remain.
Most importantly, President Obama has threatened to veto the bill if it contains the problematic language. President Obama, citing serious legal and policy concerns, has threatened to veto the bill if the two provisions are not removed. In a recent memo to the Senate, the administration asserted that, “applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.” It is time for the citizens to speak up for their rights before they are gone.
