Congress must shoot down the defense authorization bill

A few days ago, I wrote that the compromise is the Senate over the detainee language in the defense authorization bill was a good thing. Well, after reading more about it, it’s clear that Americans are still in danger of being detained indefinitely by their own government without formal charge, as Sheldon Richman of the Foundation for Economic Education explains at Reason:

Permit me to state the obvious: The government shouldn’t be allowed to imprison people indefinitely without charge or trial. It shouldn’t be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.

Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the U.S. Senate. Last week the Senate voted 61-37 in effect to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial—perhaps at Guantanamo—if they are merely suspected of involvement with a terrorist or related organization—and even if their suspected activity took place on U.S. soil.

The provision, which is included in the National Defense Authorization Act, was drafted without a public hearing by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.). Sen. Mark Udall (D- Colo.) sponsored an amendment to remove the power, but the amendment was defeated. A related provision requires that terrorism suspects who are not citizens be held by the military rather than being tried in a civilian criminal court. (The executive branch can waive this requirement after certifying to Congress that the waiver is a matter of national security.)

The right of habeas corpus is preserved for citizens, but this is the barest minimal protection of a suspect’s rights.
What we have here is a shameful move to further undermine two or more pillars of the traditional American criminal justice system (to the extent it still exists). Suspects are just that: suspects. Before being imprisoned, they are entitled to notice of the charges and a proper trial before a jury in which the government has the burden of proof.

Moreover, the United States has an old principle of law that severely restricts the military’s involvement in domestic law enforcement. As Gene Healy of the Cato Institute notes, the 1887 Posse Comitatus Act sets “a high bar for the use of federal troops in a policing role. That reflects America’s traditional distrust of using standing armies to enforce order at home, a distrust that’s well-justified.” (See Healy’s Freeman article “Blurring the Civilian-Military Line.”)
Some downplay the significance of the Levin-McCain provision because it merely would codify powers already exercised by Presidents Obama and George W. Bush. Perhaps. But these are powers no president should have ever possessed. So they shouldn’t enshrined in law.

Udall says the provision goes further than mere codification: “[T]he secretary of defense, the directors of national intelligence and the FBI, and the White House—along with numerous defense experts—have said this would amount to a significant expansion of the military’s detention authority… . These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.”

Regardless, make no mistake about the scope of the provision: “[T]he statement of authority to detain does apply to American citizens and it designates the world as the battlefield, including the homeland,” said Sen. Lindsey Graham (R-S.C.) in defense of the provision.
Rep. Justin Amash (R-Mich.), called the provision “one of the most anti-liberty pieces of legislation of our lifetime.”

Levin and McCain answered their critics in a Washington Post op-ed, writing, “[T]he administration has broad authority to decide who is covered by this provision and how and when such a decision is made.”

Are we supposed to be comforted by unchecked presidential discretion? As I recall, the American revolution had something to do with an objection to arbitrary power.

“Essentially,” writes Andrew Napolitano, “this legislation would enable the president to divert from the criminal justice system, and thus to divert from the protections of the Constitution, any person he pleases.”

As we’ve seen over the last 10 years, since 9/11, giving such broad authority to one branch of government is a recipe for disaster. This why the Founding Fathers put checks-and-balances in place and protected basic liberties, including the Great Write of Habeas Corpus.

While those pushing this language may have the best intentions, there is little doubt that it will eventually be used in a manner that it was not intended — especially the the war on terrorism is slowly being more broadly defined and even non-violent political groups are being labeled as domestic extremists. Again, remember the DHS handbook on “domestic extremism” or the MIAC report?

I’m not a conspriacy theorist, but as Bob Barr said during a 2008 hearing before the House Judiciary Committee, “Every administration that comes in takes the powers that it inherits from its predecessor as a floor, not a ceiling.” Members of Congress, especially those that claim to be defenders of the Constitution, must keep that in mind as they move forward with this blatantly unconstitutional bill.

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