National Defense Authorization Act's detention provision exceeds constitutional bounds

Wednesday, October, 24, 2012; 10:08 PM | 23 | | Print

by Andrew Kulak, regular columnist

It says a lot about the state of American politics today when Democrats and Republicans refuse to put partisan bickering aside for the good of the country, yet both parties are more than willing to unite to deny Americans their civil liberties, and flagrantly disregard the Constitution.

The indefinite military detention provision in the National Defense Authorization Act, passed by Congress with bipartisan support and signed into law by President Barack Obama last year, really should not surprise anyone.

Since the PATRIOT Act snuck through Congress, it seems politicians have been scheming new and more creative ways to deny American citizens pesky things like “due process” and “equal protection under law.”

The NDAA should be a fairly routine budget bill, passed yearly to allocate defense spending. But the most recent iteration of the law includes a provision allowing the military to arrest and detain anybody, anywhere, for any reason, for any length of time.

Let that soak in for a moment.

You might wonder why a fairly routine budget bill includes wording that allows the military to detain you without evidence or probable cause forever.

Well, so am I, and so are the American Civil Liberties Union and a number of state and local governments.

America, a nation whose war cry was, “Give me liberty or give me death,” now allows the president to order the military to imprison its own citizens. It essentially suspends Habeas Corpus, the centuries-old writ requiring evidence to be provided to an individual after being detained.

The law circumvents the Posse Comitatus Act, which has limited the ability of the armed forces to act as civilian law enforcement because the military is not trained and is over-equipped to respond to most non-military crimes.

Where are the pro-civil liberty Republicans? Where are the Democrats, who have demanded the repeal of the PATRIOT Act and the closure of Guantanamo Bay? Could it really be that we have found something these two feuding, deadlocked parties can agree on?

After a federal court successfully challenged the law last month, Obama and his Justice Department — not to be outdone — demanded the law be reinstated, arguing that not being able to indefinitely detain people with no evidence was an unreasonable burden on the executive branch.

How dare the power of one branch of government check the power of another, right?

A second judge agreed with the administration — for reasons I am sure had nothing to do with political expediency — and ordered the law remain in effect, pending further appeals.

I imagine Congress and Obama had good intentions. Obama did voice some disagreement with the provision, questioning its constitutionality out of one side of his mouth while enacting it with the other. Wording in the law ostensibly limits application to terrorist suspects.

But the road to Hell is paved with good intentions, and we cannot ignore the laws and the Constitution that made this nation great in the name of some small, potential amount of extra security.

The point of having a Constitution is to apply it to everyone equally. We have fought wars for the equal freedoms it codifies. Even terrorists have a right to their day in court, regardless of our how we might feel about them.

The government has quite a bit of latitude when branding an individual a “terrorist.” Once detained without Habeas Corpus, I doubt you or your probably forbidden defense lawyer will have access to the dealings that resulted in you being so labeled and detained.

Terrorists might frighten us — they might threaten us — but surrendering the freedom our founders and many since have fought and sacrificed their lives for is never the right thing to do.

While I do not believe the NDAA will lead to some dystopian police state overnight, I do believe if even one person’s rights are violated, all of our rights are violated. We must do what we can to protect our Constitution, our democracy and our freedom. If we do not, those very freedoms might slip away.

One can only hope our system of checks and balances will prevail and the detention provision in the NDAA will rightly be relegated to history with those other blatantly unconstitutional laws passed in moments of fear and panic.

But if it is not, and you find yourself detained, just think, “Hey, at least I wasn’t on the kill list.”

A version of this article appeared in the Oct 25 issue of the Collegiate Times.

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H. Skip Robinson | # October 25, 2012 @ 2:08 PM — Flag Comment

Terrorism is the war of the poor as war is the terrorism of the Rich - Sir Peter Ustinov

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