Is Our Senate at War Against American Citizens?

Last week I wrote an article about the United States Senate’s pending passage of the National Defense Authorization Act (NDAA) and a controversial measure in the bill (Section 1031), which would allow for the “Guantanamo-style” detention of American citizens indefinitely, and without formal charges, by the US military. Despite repeated threats of veto from President Obama, the Senate has since passed the bill and has, in the process, defeated multiple attempts to do away with Section 1031 of the legislation.

After I published that article, I joined an effort headed by the American Civil Liberties Union asking our nation’s Senators to reconsider their support for this controversial legislation. Here in Georgia we have the distinct dis-pleasure of being represented by two of the nation’s most conservative Sentors, Johnny Isakson and Saxby Chambliss, both of whom supported NDAA. While I have yet to hear back from Mr. Isakson, I did receive a response from Senator Chambliss. To my surprise, I found his response even more disturbing than his initial support for the bill.

Here are some of the more interesting, and perhaps frightening, snippets, from Mr. Chambliss’ response (emphasis added by me):

• “It is well-founded in our history that the United States has the authority to hold enemy combatants until the end of hostilities in order to prevent their return to the battlefield.”
• “…detainee provisions in the National Defense Authorization Act codify this long-recognized authority, and make clear that any al Qaeda terrorist, whether foreign or American…can be held under the laws of war.”
• “…we are at war, detention within a military framework is often the most fitting solution for handling certain terrorist detainees.”
• “…the provisions ensure that the rights of United States citizens continue to be protected by the Constitution.  Thus, any American detained under this authority would still be able to challenge his detention in a federal habeas proceeding.”
• “As we continue to fight al Qaeda and other terrorists, our primary concern must be to ensure that our military and intelligence professionals have the authority and flexibility they need to collect valuable intelligence.“

Mr. Chambliss goes on to express his pleasure that the amendments proposed by several Senators, Republican and Democrat, specifically aimed at removing the measures to indefinitely detain American citizens, were soundly defeated. He also makes a point to mention that the bill had “overwhelming bipartisan support,” failing to mention that there was also bipartisan support for the measures to remove Section 1031 from the bill. The Udall Amendment, in particular, received a majority (51 votes), but fell short of the 60 votes needed to succeed .The final bill passed by a vote of 61-37, which most Americans would hardly  consider an overwhelming majority.

Is America Still at War? And If So, With Whom?

Senator Chambliss noted to me many times that America is “at war” and subsequently used this war as justification for passing laws that arguably trample all over the constitutional rights of native-born American citizens. This confounds me because, while we’re all familiar with President Bush’s informal declaration of a “War on Terror,” that term has come to be overwhelmingly ambiguous and confusing. While Congress did authorize military engagements in Iraq and Afghanistan, the United States has never formally declared war in either of those countries, nor has Congress or any other branch of the government formally declared an official “War on Terror.” In fact, the United States has only ever declared war five times in its entire history, the last time being after the Japanese attack on Pearl Harbor during World War II.

Mr. Chambliss is presumably referring to the unofficial “War on Terror,” in his letter, but this begs the question, since there is no formal declaration of war, against whom are we fighting this war, and most importantly, how do we know when the war has ended? Unfortunately, this falls into a poorly understood gray area the no one in the government or the military has clearly defined. Mr. Chambliss states that it is “well-founded” in American history that our government has the authority to detain “enemy combatants until the end of hosilities.” If there is no declaration of war, no stated goal as to what are our purposes and our ends from this so-called war, when, if ever, can we be comfortable that there will be an end to hostilities? In short, we simply can’t.

This line of thinking runs very much parallel with that espoused during the ongoing “War on Drugs.” In the “War on Drugs” there are no stated-goals to define success, nor are there even any measurable criteria to define what sort of progress is being made in that “war”. We find ourselves in a most distressing situation – there is a frightening and exceptionally disturbing overlap between the “War on Drugs” and the “War on Terror.”

This leads me to fear that, before long, we may see similar logic used to detain players in the “War on Drugs” indefinitely. After all, couldn’t drug dealers, manufacturers, and transporters be considered “enemy combatants” under Mr. Chambliss’ definition? Is it possible that John Q. Public, on his was to score a bag of weed or a fix of heroin could potentially find himself the subject of a military raid? Would we then see him and his dealer locked up in a federal detention facility, never being formally charged, until the “War on Drugs” is over? Such a case might seem far-fetched, and I’ll admit, it is fairly hard to imagine in today’s environment, but this is the same sort of logic our Senators are using to justify their support of this legislation. Not only is it disturbing, it is arguably a gross violation of our constitutional rights and, perhaps even, our basic human rights.

What Ever Happened to Due Process?

Senator Chambliss, in his reply to me, also states that citizens who are detained under the provisions of Section 1031 of the National Defense Authorization Act are still guaranteed their rights under the Constitution and still retain the ability to challenge their detention “under federal habeas proceedings” (essentially a process that questions the constitutionality of a person’s imprisonment). The major hitch in this, however, is that the legislation grants the prisoner (or ‘detainee’ as the military prefers to call them), an initial hearing at which the military asserts that the person in custody is a suspected terrorist. After this, if the military decides to not bring formal charges against the prisoner, the only means of release (barring an “end to hostilities,” as mentioned previously), is by a waiver signed by the Secretary of Defense. This process makes a complete mockery of due process as it is understood by the framers of the US Constitution and just about any other society with the faintest hint of democratic principles.

Presumably, the detainee still retains the right to challenge his or her imprisonment by filing a writ of habeas corpus, or other legal motion, in federal court. However, given that his (or her) access to a lawyer, or anyone else in the outside world, would most likely be severely limited, under the auspices of preventing the presumed terrorist from conspiring with partners on the outside, the likelihood of this actually happening are extremely remote. Over the years, we have heard countless reports of prisoners at Guantanamo Bay being denied access to lawyers and courts and being cut off entirely from the outside world in the interest of national security, so what makes these presumed terrorists and enemy combatants any different? As Senator Chambliss himself admits, our primary concern must be to ensure that our military and intelligence professionals have the authority and flexibility they need to collect valuable intelligence. Yes, that’s right. Our primary concern is not to protect the rights of American citizens who may presumably be innocent and who, in fact, under the Constitution should be presumed innocent. His primary concern, and I would guess the primary concern of all those who so strongly support the “War on Terror,” is to ensure the military can take whatever measures it pleases to extract information from and punish suspected enemy combatants. If you think this is all starting to sound a lot like some nightmarish fascist military state, rest assured, you’re not the only one.

So, Who’s Next?

In addition to making possible the indefinite detention,  without charge, of suspected supporters of al Qaeda and the Taliban, legislation such as the NDAA opens the door to a whole new world of US military control over American citizens. It’s no secret that many in Washington would like to see the Occupy Wall Street and related protest movements around the nation silenced. After all, these protesters, by the very nature of what they are protesting, threaten the American capitalist economic infrastructure as we understand it and, as a result, pose a very real threat to the very base of power that supports the power brokers in Congress. It’s no surprise that we see bipartisan support for measures such as the NDAA. It’s also no surprise that we have seen bipartisan support against the Occupy movements. In fact, many of the mayors who have been leading police raids against Occupy encampments are Democrats. So this is not a problem that’s limited merely to Republicans and far right-wing conservatives. This problem has infected the entire American political establishment. And if we don’t stop them here, it’s only going to get worse.

With this legislation, the military has been limited to detaining American supporters of al Qaeda and the Taliban. But what happens if, a year or two down the road, after more police run-ins with protesters, the establishment and the mainstream media decide that the Occupy protesters, and other active political dissenters, are themselves terrorists. Will the “War on Terror” then extend to these mostly peaceful protesters in America’s homeland? It’s frightening to even ponder these questions, but we must ask them if we wish to preserve the basic rights which we have, for so many years now, taken for granted. Protesters in places like Syria, Egypt, and Tunisia are dying for the right to freedom of speech, freedom of assembly, due process. Here in America we’re privileged. But we may not be for long. And if legislation like the National Defense Authorization Act is allowed to pass and we don’t challenge it now, we may not be able to in the future. Those pictures we’ve seen of protesters being mowed down in gunfire may no longer be limited to your television screens. They may be happening in your own backyard.