Constitution Trashing by a Constitution Scholar

The National Defense Authorization Act of 2012 (NDAA) expands the military’s authority to indefinitely detain accused terrorists, without the right to a trial. The NDAA applies to those “accused,” not convicted. Thus, it is part of the radical expansion of power that has defined the United States since the attacks of 9/11. 

President Obama had vowed to veto the NDAA if it included the arrest and detension provisions, not on the basis that it was an affront to the U.S. Constitution, but because he felt 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 it.

If anyone opposed to holding people indefinitely without trial sees the Supreme Court as a possible savior, Christopher Anders, senior legislative counsel of the ACLU, throws cold water on that hope. Anders says that when the legislative and executive branches of government are working together, their joint action 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 permits the government to indefinitely detain in military custody, Americans accused of terrorism.  Hamdi v. Rumsfeld ruled that Yaser Esaur Hamdi could not be held indefinitely without habeas release but it ruled only that detainees could challenge their status as “enemy combatants,” which itself was a case of the executive branch legislating a new category of criminal. An indication of how sloppily written Hamdi v. Rumsfeld was is that both sides in the indefinite detention debate on the Senate floor cited it as supporting their respective cases.

Hamdi v. Rumsfeld did not grant access to the courts, instead it said that military tribunals must comport with treaty obligations and the Uniform Code of Military Justice. The Supreme Court could have said that military tribunals are not an appropriate venue for trying civilians, thus preventing the Congress from authorizing them after engaging in a little tidying up. A previous blog of mine pointed out that the Military Commissions 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 while debating the NDAA 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 Diane Feinstein (D-CA) who was arguing most strenuously for a clearly stated exemption for U.S. citizens.

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

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

Bringing up to the present the matter of the president’s broad latitude in dealing with those designated as terrorists, President Obama reportedly sits down once a week with a Facebook-like album in front of him and proceeds to pick out who will be assassinated next in the name of fighting the war on terror. Killing without a semblance of judicial process has become the new normal in U.S. life.

*The Guantanamo Files, released by Wikileaks, present further evidence why Guantanamo should be closed. The Guantanamo Files include classified documents on more that 700 past and present Guantanamo detainees. An Al Jazeera cameraman was held for six years and then suddenly released without any explanation. 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.


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