A National Defense Act or how to undermine the US Constitution?

A National Defense Act or how to undermine the US Constitution?

Dr. Aref Assaf/NJ Voices 12/09/2011 6:55 AM

Is America the land of the free or the land of fear? Theslow erosion of our fundamental human and civil rights has reached its summit,and the consequences should worry us all.

The United States Senate has just passed a resolution thatas currently drafted, gives authority to the US military to indefinitely detainpersons, even American citizens arrested on American soil or overseas withoutcharge or trial. In other words, the federal government has the ability toopenly detain American citizens, here or overseas, for their entire liveswithout so much as a single charge -denying US citizens their Article IIIrights to a jury trial. All it needs to do is declare you a terrorist- no proofneeded and due process observed.

Tucked inconspicuously in the 682 pagesof the, NationalDefense Authorization Act for Fiscal Year 2012 (NDAA), the Bill under thetitle 'Detainee Matters' in section 1031 and 1032, Congress has essentiallygiven the Department of Defense the explicit power to take civilians intomilitary custody and to indefinitely detain people suspected of terrorismactivities with no charges or trial. People in Egypt, Tunisia, and Syria haveengaged in revolutions to replace these undemocratic and unjust practices.

No doubt, codifying indefinite military detention into lawis one of the most egregious developments since the passage of the PATRIOT Actin 2001. A close read of the relevant sections means that all control would betaken out of the hands of civilian-controlled judicial system, and placed intothe secretive and unaccountable domains of the American military. Are theSenators who signed onto the legislation calling for a military takeover of ourjustice system? Until now, the Department of Justice, the state and local lawenforcement agencies have had the primary responsibility and the appropriatetraining to enforce anti-terrorism laws within the United States. The NDAAwould, in the case of many civilian suspects, remove these entities from theprocess of investigation, arrest, criminal prosecution, and imprisonment andcede such powers over to the military.

Section 1031 of S. 1253 would be the first time in more than60 years that our so-called representatives in Washington would allowindefinite detention of American citizens, with no charges or trial withoutCongressional authorization. If there was a case where liberty has beenforsaken for temporary security as Ben Franklin so eloquently warned, this Billis a prime example.

The US Senate has thus acted to render irrelevant theessence of our legal and judicial foundation: habeas corpus. According to Article Iof the Constitution, it is a judicial mandate that requires that a prisoner bebrought before the court to determine whether the government has the right tocontinue detaining them. The individual being held or their representative canpetition the court for such a writ. The current Senate bill has in effectendorsed the notion that the government can do whatever it likes to any citizen,it merely suspects individuals of being involved in terrorism. And since theso-called war on terrorism is an open-ended war and knows no geographicaldemarcations, the entire framework of the constitution could disappear througha 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 anyrecourse. We used   to condemn countriesfor engaging in these practices against their own citizens. And now here we are doing it in these UnitedStates.

The Senate bill would let the government lock up any citizenit says is a terrorist, without the burden of proving its case to anindependent judge, for the lifespan of a not-so clearly defined war. Andbecause the Senate used the bill that authorizes funding for the military asits vehicle for this dramatic constitutional claim, many Senators found an easyexcuse to vote for the bill. But even if the intent of the legislationwould leave the civil liberties of an overwhelming majority of Americansuntouched, the checks and balances are inadequate. Even if we accept supportiveanalysis of the two sections in full, we have to assume two things. First, thegovernment will never make a mistake and, second, the government will never exceedits power. These are not very tenable expectations, which is why the nation's FoundingFathers were prudent not to consider them. Now, in section 1031(b) (2), I donot see the requirement for a civilian judge to issue a warrant. So it appearsthis legislation directly violates the Fourth Amendment of the Constitutionwith regard to those rights which are inalienable, according to the Declarationof Independence, and should be inviolate as your birthright as an Americancitizen. Also, despite the SixthAmendment's guarantee of a right to trial, the Senate bill would let thegovernment lock up any citizen it swears is a terrorist, without the burden ofproving its case to an independent judge, and for the lifespan of an amorphouswar that conceivably will never end.

Is it lawful for the president to order any American to beheld indefinitely as a terrorist, without formal charges, evidence presented inopen court, a trial by jury, or a standard of "guilty beyond a reasonabledoubt"? The U.S. Senate has ruled this to be a valid power. The shame ofthe Senate is evident by the number of Senators who voted for the bill: Fortyeight Democrats and forty-four Republicans and one Independent. New Jersey'stwo Senators, Robert Menendez, and Frank Lautenberg voted for the bill and madeno public denouement of the unconstitutional sections.

It is worth noting that  Senior Department of Justice,Department of Defense, and former administration officials warn theseprovisions will be a severe blow to our national security efforts andcounterproductive to counter terrorism measures. Many Senators have soeloquently spoken against the sections in addition to strong statements fromleading civil rights organizations. Senator Al Franklin(D-MN) represent this view, he said, "I fear the detention provisions inthis bill forget the lessons we learned from the mistakes we made when weinterned thousands of innocent Japanese, Germans, and Italians, or when wedestroyed the lives of supposed communist sympathizers with nary a shred ofevidence of guilt."

Fortunately, the Houseversion 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 containsthe problematic language. PresidentObama, citing serious legal and policy concerns, has threatened to veto thebill if the two provisions are not removed. In a recent memo to the Senate, theadministration asserted that, "applying this military custody requirementto individuals inside the United States, as some Members of Congress havesuggested is their intention, would raise serious and unsettled legal questionsand would be inconsistent with the fundamental American principle that ourmilitary does not patrol our streets." It is time for the citizens tospeak up for their rights before they are gone..