Fear Strikes Home

When President Obama signed the National Defense Authorization Act into law on Dec. 31, the event was largely overlooked by the corporate news media. The bill authorized $662 billion for military personnel, weapons systems, the war in Afghanistan, national security programs in the Energy Department and other items for the fiscal year beginning Oct. 1. The most controversial provision in the bill affirmed the president’s authority to indefinitely detain suspected terrorists. That raised alarms among those who believe the War on Terror does not override the need to protect civil liberties. But the government has been indefinitely detaining suspected terrorists ever since the September 11, 2001 attacks, so many news editors may not have detected much news in the defense authorization bill’s affirmation of those detention powers.

However, media that noticed the detention provision often misreported it. Many commentators confused the final bill with earlier House and Senate versions that threatened to mandate indefinite military detention of terror suspects, including citizens captured on US soil, and threatened to block the president’s discretion to investigate and prosecute terror suspects.

The defense bill affirmed the president’s authority to detain, via the armed forces, any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,” and anyone who commits a “belligerent act” against the US or its allies, under the law of war, “without trial, until the end of hostilities authorized by the [Authorization for Use of Military Force].”

President Obama had threatened to veto earlier versions of the bill that threatened to limit the administration’s ability to prosecute terror suspects in federal courts, but after a Senate-House compromise ruled out limitation of the president’s authority and removed the requirement that suspected terrorists arrested in the US be detained indefinitely in military jails, the White House dropped the veto threat.

Obama issued a signing statement saying he had “serious reservations” about the provisions, but he said his administration “will not authorize the indefinite military detention without trial of American citizens.”

That was little comfort to human rights supporters, such as the American Civil Liberties Union, which noted that Obama’s statement only applies to how his administration would use the authority and would not affect how the law is interpreted by subsequent administrations. ACLU Director Anthony Romero said the authority could “be used by this and future presidents to militarily detain people captured far from any battlefield.”

The bill originally would have mandated military custody for non-citizens, such as convicted underwear bomber Ubar Abdulmutallab. But Adam Serwer, in a Jan. 2 analysis at MotherJones.com that is very helpful in understanding what the bill actually does, reported that enough loopholes were created in the final bill to allow the administration to avoid the restrictions. Based on Obama’s signing statement, that is what the president intends to do. “Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded,” Obama stated. However, Serwer noted, the law still creates an assumed role for the military in domestic law enforcement, and will allow critics to accuse the president of ignoring the will of Congress next time a non-citizen terror suspect is captured on American soil.

Critics have loudly complained that the bill shreds the Bill of Rights. We note that the Bill of Rights is still intact, but we need to get members of Congress and, more importantly, the right wing of the Supreme Court to read it.

We agree with the ACLU that any military detention of American citizens or others within the US is unconstitutional and illegal. In addition, the breadth of the detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war. But the defense bill didn’t change administration policies. Due process has been under attack ever since the 9/11 attacks spurred Congress to enact the blank-check authorization of military force.

The NDAA’s legislative process is an example of the cowardice of our lawmakers. Solid majorities in both chambers let fear of terrorism override protection of our most basic civil liberty — the right of an accused to have his or her day in court.

During the Senate debate Nov. 29, Sen. Mark Udall (D-Colo.) introduced an amendment that would forbid the indefinite detention of civilians, including US citizens. It failed on a 38-60 vote.

For the record, the senators who stood up for Udall’s amendment to uphold due process were Akaka (D-Hawaii), Baucus (D-Mont.), Bennet (D-Colo.), Bingaman (D-N.M.), Blumenthal (D-Conn.), Boxer (D-Calif.), Brown (D-Ohio), Cantwell (D-Wash.), Cardin (D-Md.), Carper (D-Del.), Coons (D-Del.), Durbin (D-Ill.), Feinstein (D-Calif.), Franken (D-Minn.), Gillibrand (D-N.Y.), Harkin (D-Iowa), Johnson (D-S.D.), Kerry (D-Mass.), Kirk (R-Ill.), Klobuchar (D-Minn.), Lautenberg (D-N.J.) Leahy (D-Vt.), Menendez (D-N.J.), Merkley (D-Ore.), Mikulski (D-Md.), Murray (D-Wash.), Nelson (D-Fla.), Paul (R-Ky.), Reid (D-Nev.), Rockefeller (D-W.V.), Sanders (I-Vt.), Schumer (D-N.Y.), Tester (D-Mont.), Udall (D-Colo.), Udall (D-N.M.), Warner (D-Va.), Webb (D-Va.), Wyden (D-Ore.).

After the conference committee compromised on the final bill, the House passed it 283-136 on Dec. 14. House Republicans supported the bill 190-43. Dems split 93-93. Rep. Ron Paul (R-Texas), the supposed protector of civil liberties, as well as Michele Bachmann (R-Minn.) were among 14 non-voters.

The bill finally passed the Senate 86-13 on Dec. 15 (ironically, the 220th anniversary of the ratification of the Bill of Rights). Dems who voted against this flawed bill included Cardin, Durbin, Franken, Harkin, Merkley and Wyden, as well as Sanders. Republicans who voted against the final bill included Coburn (Okla.), Crapo (Idaho), DeMint (S.C.), Lee (Utah), Paul (Ky.) and Risch (Idaho), although all the Republicans except Paul probably voted against it because it didn’t go far enough.

In lawmaking, as in war, truth is often the first casualty, and most of the deals are struck behind closed doors, so it’s hard to pin blame for the objectionable provisions, but Republicans led the demand for expanding military detention of terror suspects and many Democrats who should know better reportedly voted for the bill to let the military expenditures proceed, under the assumption that the courts would throw out the detention provisions.

The right to challenge detention is one of the most basic rights enshrined in the Constitution. Article 1, Section 9 declares, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In Ex Parte Milligan, the Supreme Court in 1866 declared that even during the Civil War the suspension of the writ by Congress did not empower the president to try citizens before military tribunals as long as civil courts were open and operational.

Unfortunately, that hasn’t stopped presidents and Congresses from trying to fudge civil liberties when they feared enemy attacks.

Still, the writ has proven durable. In Hamdi v. Rumsfeld, eight justices agreed in 2004 that a US national captured during the 2001 invasion of Afghanistan could not be held in military detention indefinitely without basic due process protections. In Boumediene vs. Bush, the Court voted 5-4 in 2008 that foreign prisoners at Guantanamo have a constitutional right to challenge their continued detention in federal court.

Doing away with the right to habeas corpus would be a big lift even for the hacks on this Supreme Court — but the replacement of conservative Justice Anthony Kennedy or any of the more liberal justices on the Court could tilt the balance under a Republican administration to render the Bill of Rights a dead letter. That is why, even if you think Obama has betrayed progressive principles, progressive Americans can’t afford to let any of the Republican candidates reach the White House and send a shredder to the Supreme Court. That prospect should scare you. —JMC

From The Progressive Populist, February 1, 2012


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