If you've been paying attention to national news the past few days, you may have heard talk about the U.S. Senate's efforts to pass the National Defense Authorization Act. What you may not be aware of, however, is that, as part of this legislation, the Senate wants to give the United States military the authority to detain its own citizens indefinitely. And that's not just if these citizens happen to be captured halfway across the world in the deserts of Afghanistan or Iraq, as has been the case for the past decade. This legislation, for the first time, allows the U.S. military to detain American citizens captured right here within our very borders for as long as it pleases without so much as the need to even charge them with any crime.
The United States Constitution guarantees that no person shall "be deprived of life, liberty, or property without due process of law." (Bill of Rights, 5th Amendment). It also guarantees that all citizens "shall enjoy the right to a speedy and public trial, by an impartial jury" and that he or she must "be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense." (Bill of Rights, 6th Amendment). This, as most any middle or high school civics student can tell you, constitutes due process, one of the most fundamental aspects of a democratic society. Apparently a majority of United States Senators either don't know about due process, or simply don't care that the Bill of Rights grants all of us the right to due process. Otherwise, how can we explain their clear and unwavering support for Section 1031 of Senate Bill 1867 (commonly called the National Defense Authorization Act). The section is titled: "AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE," which provides a fair indication of exactly what follows (you can view the entire contents of Section 1031 of the bill here).
In short, this legislation allows the military to arrest and indefinitely detain anyone it suspects of participating in terrorist activity or for "being a part of or substantially supporting al-Qaeda, the Taliban, or associated forces" who are engaged in hostilities or fighting against the United States. This is perhaps the most controversial part of the bill. Essentially, you or I could be arrested and held as long as the military cares to keep us simply for supporting terrorists. Most disturbing, the term "substantially supporting" seems intentionally vague. What, precisely, does "support" of these hostile forces entail? If I post a comment on Facebook saying I'm a big fan of the Taliban, will Seal Team Six kick in my door and cart me off to Guantanamo in the middle of the night? If I attend the wrong Mosque will the Army Rangers snatch me up in mid-prayer, place a hood over my head, and drive me to an undisclosed location? Such scenarios may seem silly and far-fetched, but keep in mind -- they are entirely possible under this sort of legislation.
The only trace of due process to be found anywhere is an initial hearing whereby the military asserts that the person in custody is a suspected terrorist. After that, any US citizen accused of being a terrorist can be locked up for the rest of his or her life without ever being formally charged with any crime. The only means of escape is via a waiver signed by the Secretary of Defense himself.
This legislation has proved troubling for both conservative and liberal champions for civil liberties. Senator Mark Udall (D-Co) drafted an amendment to remove Section 1031 from the act. This legislation was struck down by a 61-37 vote. Sixteen Democrats joined a slew of Republicans in defeating Udall's amendment, proving both sides of the aisle seem to have found contempt for due process since the advent of America's war on terror.
Rand Paul (R-Ky), a staunchly conservative member of congress, finds Section 1031 profoundly disturbing, saying, "I'm very, very, concerned about having U.S. citizens sent to Guantanamo Bay for indefinite detention." In fact, if such legislation finds its way into law, and is somehow upheld by the Supreme Court, we will likely need more facilities than just Guantanamo Bay to detain these prisoners. We may find American citizens and enemy combatants being detained - and summarily deprived of their once sacred right to due process - on American soil.
Senator Dianne Feinstein (D-Ca), who has offered her own amendment to the bill, believes this legislation will authorize the indefinite imprisonment of American citizens and quipped, "We are not a nation that locks up its citizens without charge." Sadly, despite Mrs. Feinstein's claim, America seems to be a country that has less and less concern about incarcerating it's citizens, and the citizens of other nations, without charge and sometimes even without cause
Senator Lindsey Graham (R-SC) attached Senator Udall's amendment and vociferously defended the bill that calls for military detention of Americans (crafted by Democrat Carl Levin of Michigan), saying: ""The enemy is all over the world. Here at home. And when people take up arms against the United States and [are] captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity?" It seems a common ploy in today's political arena for lawmakers to pit national security, which many believe to be the supreme purpose of our government, against the rights of individual Americans, which they apparently believe to be less important.
Fortunately, for supporters of due process and those who oppose legislation that would keep Americans behind bars with no formal charges and limited access to the outside world, the Obama Administration has already threatened to veto the National Defense Authorization Act if it reaches the president's desk with Section 1031 still intact. Referring to the bill on November 17th of this year, the White House contends, "It is likely that implementing such procedures would inject significant confusion into counterterrorism operations." They added that such legislation is "unnecessary, untested, and legally controversial," and threatened very strongly to defeat any bill that would see Americans locked up indefinitely.
Interestingly enough, Arizona Senator and former Republican presidential candidate John McCain is one of the co-sponsors of this bill, meaning that if he were president right now (instead of Barack Obama), this bill, complete with Section 1031, would very likely become law. So for all President Obama's faults, and they are no doubt many, the drama surrounding this bill gives reason enough to be thankful he currently sits behind the desk at the Oval Office. If you hope to keep your basic rights protected, those rights we once took for granted as being guaranteed by the Constitution, it may be wise to support candidates who are committed to such basic concepts of democracy as due process. If we keep giving up rights in the name of the War On Terror, before long, we might find that we don't have any rights left.