Constitution-Trashing by a Constitution Scholar

The National Defense Authorization Act of 2012 (NDAA) would expand the military’s authority to indefinitely detain accused terrorists arrested within the country, deny the right to a trial and could subject the detainees to indefinite detention. The NDAA applies to those “accused,” not convicted. Thus, the radical expansion of power that has defined U.S. policy since the attacks on 9/11, has been augmented.

President Obama had vowed to veto the NDAA if it included the arrest and detention provisions, not on the basis that it was an affront to the Constitution, but because he felt that it would undermine the way the executive branch was dealing with terrorism. On or about December 15, 2011, Obama withdrew the veto threat, citing changes made in the NDAA.

If anyone opposed to holding people indefinitely without trial sees the Supreme Court as a possible savior, Christopher Anders, executive director of the ACLU, throws cold water on that hope. Anders says that when the legislative and executive branches of government are working together, it gets a lot more deference from the courts; therefore, an Obama veto of this thrashing of the due process provisions in the Constitution would have increased the chances of an overturn in the courts.

Although Section 1032 of the NDAA exempts U.S. citizens and lawful resident aliens from the mandate of detention, it still remains an option.

Section 1031 still permits the government to indefinitely detain Americans accused of terrorism in military custody. Hamdi v. Rumsfeld ruled that Yaser Esam Hamdi could not be held indefinitely without habeas release, but it ruled only that detainees could challenge their status as an “enemy combatant,” which itself was a case of the executive branch legislating a new category of criminal. An indication of how sloppily written was Hamdi v. Rumsfeld is that both sides in the indefinite detention debate cited it as supporting their case.

Hamdan v. Rumsfeld did not grant access to the courts, instead it said that military tribunals must comport themselves with treaty obligations and the Uniform Code of Military Justice. The Supreme Court could have ruled that military tribunals were not an appropriate venue for trying civilians, thus preventing the Congress from authorizing them after engaging in a little tidying up. A previous blog pointed out that the Military Commission Act of 2006 allows the president to empower the CIA to torture under a national security rationale.

Perhaps the weirdest spectacle on the Senate floor was Senator Carl Levin (D-MI) energetically making the case that it was the Obama administration that was insisting that an exemption for U.S. citizens be taken out of the bill. Apparently, it was Senator Diana Feinstein (D-CA) who was able to get an exemption reinstated, subject to the caveats noted above.

President Barack Obama could have vetoed the NDAA on another ground: it makes it more difficult to transfer detainees out of Guantanamo Bay prison. By signing, Obama was moving farther away his pledge to close Guantanamo.

One further note about NDAA: it permits indefinite detention of Al Qaeda members and “allies.” Defining “allies” gives authorities a broad field of opportunity in which to work.

The Guantanamo Files, released by Wikileaks, include classified documents on more than 700 past and present Guantanamo detainees. An Al Jazeera cameraman was held for six years and then suddenly released. An 89-year-old Afghan villager suffering from senile dementia was held and a 14-year-old boy, the innocent victim of a kidnapping, was also held.

Nearly 100 of the detainees were known to have depressive or psychotic illnesses.

President Obama announced in early 2010 that at least 50 detainees at Gitmo would be held without charging or trying them.

The FBI’s “Good” Muslims

Writing in the September 19, 2011 The Nation, Arun Kundnani says of the FBI’s “good” Muslims: “Local authorities have worked in concert with intelligence agencies to establish widespread networks of informants, to place mosques under surveillance and lto launch “pre-emptive” prosecutions, frequently involving schemes that, critics charge, have been more successful in trapping disaffected individuals than in netting actual terrorists.”

Kundnani quotes Birmingham (Alabama) City Council member Salma Yaqoob as follows: “By promoting and recognizing only those Muslims who toe the line, government policy is serving to strengthen the hands of the genuine extremists, those who say that our engagement in the democratic process is pointless or wrong… .

“Muslim organizations that take a civil rights stand and are then rejected as partners and vilified as conveyors of the ‘extremist’ ideas that supposedly make people into terrorists.”

The campaigning Barack Obama said he would rein in the sprawling intelligence complex: the President Obama should try reining in the FBI in its targeting of Muslims.


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