Goodbye habeas corpus, hello martial law

December 18, 2011 in News

Defense Act paves way for indefinite military detention of U.S. citizens


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Published in LareDOS, December Issue, p.44

Over the past few months we have seen a rapid expansion of the scope and authority of our federal government through the actions of our nation’s leaders in Washington.

In last month’s column I detailed a once covert military program of targeted political assassinations aimed at American citizens.  Chilling as that may be, it doesn’t end there.  Since that time, the United States Senate has moved to pass a highly controversial piece of legislation that, if signed into law, will functionally repeal the 5th and 6th Amendments of our Constitution.

The National Defense Authorization Act (NDA) has been passed annually in Congress for the last 48 years and is largely a budgetary bill dealing with the expenses of the Department of Defense.  Since 2001, however, the bill has become a hotbed issue, as it has typically included stipulations within it that will specify how the “war on terror” is conducted in places like Iraq and Afghanistan.

Earlier this month, the Senate passed the NDA Act of 2012 (S 1867) and buried deep within its pages are two provisions, Sections 1031 and 1032, which should alarm all but the staunchest proponents of military interventionism and “national defense”.

The first section in question (1031) renews  and in effect expands the 2001 Authorization for Use of Military Force (AUMF) which granted then President George W. Bush the authority to use “necessary and appropriate force” against those who “planned, authorized, committed or aided” in the September 11th attacks.  The second (Section 1032) then stipulates how these undesirable persons are to be handled once captured.

The trouble with this bill is that the language is so broad, even vague at times, that it results in rendering many of the civil liberties Americans take for granted dangerously close to irrelevant.  The new AUMF under the National Defense Authorization Act allows for military force towards not only those who may have helped in carrying out 9/11, but anyone who “substantially supports” al-Qaeda and the Taliban, any of their “associated forces”, or engages in a “belligerent act” towards the United States.

While it appears that the noticeably subtle word choice regarding al-Qaeda’s “supporters” or “associates” is likely meant to encompass groups like Al-Shabaab or al-Qaeda of the Arabian Peninsula (AQAP) operating now in places like Somalia and Yemen, who did not exist in 2001 at the time of the original AUMF, it also opens to door to connections with countless others.

This particular language in the bill has raised the ire of the ACLU as well as lawyers for several detainees, including those within the Center for Constitutional Rights, who contend the wording casts such a large net, just about anyone could be dragged in.  By defining the war in this way, ordinary Americans are at risk of being found guilty by very loose association – resulting in a twisted game of “Six degrees of Osama Bin Laden.”

Furthermore, this bill mandates that all such persons suspected of terroristic activities, whether detained in a foreign land or within the United States, be managed outside of the civilian court system.  While the measure provides exclusion to this mandate for U.S. Citizens and lawful resident aliens, it implicitly allows for their “detention under the law of war without trial until the end of hostilities,” by the Armed Forces just the same.  In other words, the military is not compelled to hold Americans “until the end of hostilities,” but it has the option, and evidently the intention, to do so.

As far as when exactly hostilities will end, your guess is as good as any.

Supporters of the NDA Act have argued that nothing in this piece of legislation really changes much in an operational sense.  Senate Armed Services Committee Chairman Carl Levin (D-MI), who along with co-sponsor Sen. John McCain (R-AZ) wrote the questionable provisions of the bill regarding indefinite detention, has repeatedly said the NDA Act does not alter existing law.

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Referring to the 2004 Supreme Court case, Hamdi v Rumsfeld, Levin said “We think the law is clear in Hamdi that there is no bar to this nation holding one of its own citizens as an enemy combatant and we make clear whatever the law is, it is unaffected by this language in our bill.”

It should be noted, however, that the Hamdi decision was rather contentious, resulting in a plurality decision by the Court – and that Hamdi was captured in Afghanistan, not within the United States.

Others in defense of this bill may point out that the Obama Administration has already been interpreting the original 2001 Authorization of Military Force in the broadest possible terms.  For years now, the Administration has asserted its authority to actively target al-Qaeda’s “associate forces”, thus enabling it to bomb the sovereign nations of Somalia and Yemen without formal declaration, or even notifying the Congress.

In short, proponents of the National Defense Authorization Act suggest the controversy surrounding the new law is much ado about nothing, since many of the actions it recommends are already taking place.  It seems then, that the best defense for this bill degenerates to what amounts to a comically lazy marriage proposal. “Look, we’re already doing it anyway; let’s just make this thing legal.”

Interestingly, however, the Obama Administration has expressed some displeasure with the act at present.  While the passage of this legislation would serve to codify dubious assertions of power within a legal framework, and perhaps even retroactively sanction Obama’s covert wars, it may not be in the best interest of the Executive to sign this bill into law.  After all, why would the Caesar want the Senate’s approval for powers it has already seized?

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It is true that the 4th, 5th, and 6th Amendments to our Constitution, meant to protect the rights of the accused, have been under de facto suspension for some time now.  When the President can order the deaths of American citizens, like Samir Khan, Anwar al-Awlaki, and his 16 year-old son Abdulrahman, without providing even a shred of evidence of their guilt, who could argue otherwise?

Still, it is one thing to conduct these operations while concealed under the cover of night, as the country collectively naps – and quite another to have them done in broad daylight, normalized, even cheered, as the new law of the land.

As of this writing the bill is working its way through the House, and its sponsors have made it known they will work towards making concessions to the Administration to avoid the possibility of the veto.  The provisions regarding the indefinite detention of American citizens, however, remain unaffected.

Even if somehow derailed in the House, as unlikely as that may be, the dangers of this legislation are very real.  To those still unsure as to what the true nature and purpose of this act is, and other laws that will surely follow, Sen. Lindsey Graham, one of the bill’s co-sponsors and biggest supporters, makes it abundantly clear. “The statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.” He later added, “If you’re an American citizen and you betray your country, you’re not going to be given a lawyer […] I believe our military should be deeply involved in fighting these guys at home or abroad.”

The timing of this legislation may seem rather odd to some, considering we have been led to believe, if not explicitly told, by this Administration that the War on Terror is winding down.  The war in Iraq is near its end, even if its occupation is not.  And we have also been led to believe that those responsible for the attacks on September 11th, namely Osama Bin Laden and his associates, have all met their justice at the end of a sword.  Why then does the war on terror, not only persist, but escalate to levels like never before? Why the sudden focus on American citizens – on “bringing the war to the homeland”? Who is the real enemy?

It does not seem unreasonable to think that, within this new framework, a violent outburst, either genuine or by provocateurs, at an Occupy protest or a Tea Party rally could lead to an indictment of “terrorism”.  Bear in mind that the state in these instances now need only to allege, not prove, an association with terrorism – a policy ripe for abuse.  History has shown that governments past and present will often opt for the path of least resistance when dealing with those it considers politically undesirable.  Could we live to see the day when exercising your rights to speech and free assembly in America, one of the few remaining, is considered a “belligerent act” toward the homeland?

While that day is not yet upon us, the idea that American citizens will soon face the very real possibility of being snatched up, disappeared, and taken without warning to a foreign military encampment like Guantanamo Bay, is truly horrifying.

As Sen. Graham suggests, this bill, once signed into law, will make it plain – the war without end is now everywhere – includes everyone, and places us all under military jurisdiction governed by the “laws of war.”  Goodbye habeas corpus and almost a thousand years of Western jurisprudence; Hello martial law.