OFF THE WIRE
By Harold Pease
On December 31, 2011, New Year’s Eve, President Barack Obama signed into law the most constitutionally damaging law in American history, the National Defense Authorization Act of 2012.
This New Year’s Eve we note its 5th Anniversary. Previous annual appropriations bills funding national defense were mostly procedural but it was the addition of two sections, buried deep within the over 600-page document, that potentially gutted the Bill of Rights for American citizens thought by the President to be assisting the enemy, that so upset constitutionalists and libertarians.
Subsections 1021–1022 of Title X, Subtitle D, entitled “Counter-Terrorism,” authorized the president to apply the Authorization for Use of Military Force, the 2001 congressional document used to justify war on Iraq, now broadly to all thought to be terrorists—including Americans living in the states far from any battlefield. The military would be used to find, arrest and “detain covered persons…pending disposition under the law of war.”
Translated, this means military tribunals and prisons and no Bill of
Rights. U.S. law; local law enforcement agents, juries, courts and
judges would be excluded, all on the whim of but one man—the president.
Moreover there exists no requirement to notify local authority when one
is “kidnapped” (captured and detained), or transferred out of the
country, as for example to Guantanamo Bay, or detained indefinitely.
President Obama did promise that he would not use it against US
citizens. This power will be transferred to Donald Trump January 20,
2017.
Constitutionalists and libertarians, notably Senator Rand Paul, have
worked hard to at least modify these two sections. Newer versions do
have Sections 1031-1033 that portend to affirm the rights of due process
and habeas corpus but opponents of newer NDAA’s are certain that it is
not enough to get back to pre-2011 constitutional protections. Senator
Feinstein noted that her goal “was to ensure the military won’t be
roaming our streets looking for suspected terrorists.”
The Posse Comitatus Act of 1878, following the Civil War, forbade the
U.S. military from performing law enforcement functions on American
soil. The American Civil Liberties Union warned in 2011, “Since the bill
puts military detention authority on steroids and makes it permanent,
American citizens and others are at greater risk of being locked away by
the military without charge or trial if this bill becomes law.”
When asked if it were possible for an American to be shipped to
Guantanamo Bay, Senator John McCain said yes. Senator Lindsey Graham
was more blunt. “When they say, ‘I want my lawyer,’ you tell them, ‘Shut
up. You don’t get a lawyer.’”
With at least three generals in the Trump cabinet it is questionable
whether they will advise Trump to return to the constitutional
protections heretofore in place. But it will be a major test of his
sincerity respecting separating himself from the establishment, both
Republican and Democratic, who together, have imposed this upon all
Americans. Cosponsors of the disturbing changes were Senators Carl
Levin and John McCain, the latter Trump deeply offended in his
presidential campaign. Neither is likely to abandon what they created
without a serious fight.
Some things are very clear in the sections disputed. The terms
“terrorists” and “affiliates” are not adequately defined, the President
is given too much power, and they violate the U.S. Constitution, which
everyone voting affirmatively swore to uphold.
It is hard to trust the government’s definition of terrorist when
Vice President Joe Biden, once referred to Tea Partiers as terrorists
and former House Speaker Nancy Pelosi, as mobsters (a term also implying
a threat to society). What guarantee do we have that the “new” enemy
does not simply rotate to anyone defined as “anti-government,” citizen
or not?
Presidents have not proved particularly trustworthy in the past with
respect to the Constitution and civil liberty. Franklin D. Roosevelt,
with the stroke of a pen, detained over 110,000 Japanese Americans in
“relocation camps” (Japanese-Americans called them concentration camps)
in World War II on the basis of race and potential terrorism. Why
should we have confidence in any president to not use this power as
“seemeth” him good?
The Writ of Habeas Corpus found in Article I, Section 9 recognized
that some day war might exist on our soil and that the accused had
rights that might have to be momentarily delayed until recognized
civilian authority could reasonably attend to them. It allowed this
delay in only two circumstances “when in cases of rebellion or invasion
the public safety may require it.”
Section 9 provides a list of powers specifically denied Congress; nor
were they given to the President in Article II. This strongly suggests
no federal role outside the two parameters, rebellion or invasion. The
removal of any civilian role and the carting off of U.S. citizens to a
foreign place without benefit of civilian judge or jury obliterates this
right.
The threat of potential incarceration without recourse to a lawyer,
judge and trial is very serious. The military performing police duties
previously rendered by civil authorities is unconscionable in a free
society. Ninety-three senators voted for this bill. Only seven
understood the Constitution well enough to defend it and vote no. These
were Democrats Tom Harkin, Jeff Merkley, Ron Wyden and Republicans Rand
Paul, Thomas Coburn, Mike Lee.
