Guard at secure facility at Guantanamo (National Guard image)
Buried within an 1,844-page bill currently sitting on Barack Obama’s desk awaiting his signature is text that many critics are warning could give the president legal authority to send Americans to jail without charges, without trial, without end.
Both the U.S. House and Senate have passed the National Defense Authorization Act, a sweeping piece of legislation that affects dozens of aspects of foreign and military policy, but that was designed primarily to give the military – and not civilian courts – the clear authority for prosecuting and jailing terrorists.
But voices from across the political spectrum are concerned that the bill opens the door for the military – led by the president as commander in chief – to indefinitely detain American citizens, even within the U.S.
“We’re talking about American citizens who can be taken from the United States and sent to a camp at Guantanamo Bay and held indefinitely,” explains Rand Paul of Kentucky, one of 13 senators who voted against the bill. “There are laws on the books right now that characterize who might be a terrorist: someone missing fingers on their hands is a suspect, according to the Department of Justice. Someone who has guns, someone who has ammunition that is weatherproofed, someone who has more than seven days of food in their house can be considered a potential terrorist. If you are suspected because of these activities, do you want the government to have the ability to send you to Guantanamo Bay for indefinite detention?”
The senator was likely referring to documents released by the Department of Justice in Obama’s first year in office listing everyone from returning veterans to pro-life activists to 2nd Amendment advocates as possible “domestic terrorists.”
Joining Paul in opposing the bill were unlkely allies Ben Cardin D-Md., Tom Coburn, R-Okla., Mike Crapo, R-Idaho, Jim DeMint, R-S.C., Dick Durbin, D-Ill., Al Franken, D-Minn., Tom Harkin, D-Iowa, Mike Lee, R-Utah, Jeff Merkley, D-Ore., Jim Risch, R-Idaho, Bernie Sanders, I-Vt., and Ron Wyden, D-Ore.
“These provisions are inconsistent with the liberties and freedoms that are at the core of the system our Founders established,” wrote Franken in an editorial in the Huffington Post the day after the bill passed. “Yesterday was the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”
Among the bill’s many provisions are tougher sanctions on those doing business with Iran’s Central Bank, a freeze on $700 million in aid to Pakistan, a measure to make the head of the National Guard Bureau a member of the Joint Chiefs of Staff, an allowance for military chaplains to opt-out of performing same-sex marriages and an authorization of $670 billion in spending for the Defense Department, along with the Energy Department’s nuclear weapons programs.
The biggest controversy, however, seems to surround how suspected terrorists will fare under the law.
Sen. John McCain, R-Ariz., one of the leading advocates of the bill, argued it’s necessary to clarify that foreign terrorists don’t have the right to civil trials.
“There’s a fundamental principle in that we don’t want to criminalize a national security issue,” McCain told reporters on Capitol Hill last week. “Any enemy combatant is an enemy combatant.”
“Those who say that we have written into law a new authority to detain American citizens until the end of hostilities are wrong,” explained Senate Armed Services Committee Chairman Carl Levin, D-Mich. “Neither the Senate bill nor the conference report establishes new authority to detain American citizens – or anybody else.”
Yet not even the congressmen who voted for the massive bill are so sure.
Sen. Dianne Feinstein, D-Calif., for example, added an amendment to the bill that specifies the resulting measure could not be “construed to affect existing law or authorities relating to the detention of United States citizens … or any other persons who are captured or arrested in the United States.”
Nevertheless, she also proposed a follow-up bill that would cement a protection against what the bill’s critics fear.
“I strongly believe that constitutional due process requires that United States citizens apprehended in the United States should never be held in indefinite detention,” Feinstein said. “That is what this legislation would accomplish.”
Part of the ongoing controversy stems from disagreement over whether the military can already detain U.S. citizens who are terror suspects or not.
“If you have a problem with indefinite detention, that is a problem with current law,” said Rep. Adam Smith, D-Wash., the top Democrat on the House Armed Services Committee. “The problems that people have, and I share some of them, are with existing law, not with this bill. Defeat this bill, and that will not change a piece of that existing law that we’ve heard about that we should all be concerned about.”
But Tom Parker, policy director of Amnesty International USA, disagrees and declared his disappointment in President Obama for retracting an earlier threat to veto the legislation.
“The NDAA provides a framework for ‘normalizing’ indefinite detention and making Guantanamo a permanent feature of American life,” Parker said. “By withdrawing his threat to veto the NDAA, President Obama has abandoned yet another principled position with little or nothing to show for it. … Amnesty International is appalled – but regrettably not surprised.”
Rep. Jerry Nadler, D-N.Y., whose district actually includes Ground Zero, warned that legislators should not be so zealous for fighting terror that they erode freedom.
“We are in danger of losing our most precious heritage not because a band of thugs threatens our freedom, but because we are at risk of forgetting who we are and what makes the United States a truly great nation,” Nadler said. “In the last 10 years, we have begun to let go of our freedoms, bit by bit, with each new executive order, court decision and, yes, act of Congress.
“We have begun giving away our rights to privacy, our right to our day in court when the government harms us, and, with this legislation, we are continuing down the path of destroying the right to be free from imprisonment without due process of law,” Nadler said.
WND editor Joseph Farah, in a column called “The day habeas corpus died,” said though he seldom agrees with Tom Malinowski of Human Rights Watch, the activist is right to be stunned by the bill’s audacity.
“It’s something so radical that it would have been considered crazy had it been pushed by the Bush administration,” said Malinowski. “It establishes precisely the kind of system that the United States has consistently urged other countries not to adopt. At a time when the United States is urging Egypt, for example, to scrap its emergency law and military courts, this is not consistent.”
“This draconian legislation could become another of innumerable clearly unconstitutional ‘laws’ in the U.S. as early as today,” Farah added. “It is a bipartisan betrayal of the Constitution, the rule of law and the common-sense, limited-government ideals upon which the country was founded.”
When asked about the president’s wavering between opposition to support for the bill, White House Press Secretary Jay Carney acknowledged the bill’s confusing ramifications, while only briefly touching on the controversy around detaining U.S. citizens.
“After intensive engagement by senior administration officials and the president himself, the administration has succeeded in prompting the authors of the detainee provisions to make several important changes,” Carney said in a statement. “While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength.”