According to legal experts, the wording of the new National Defense Authorization Act effectively repeals the 1878 Posse Comitatus Act (18 U.S.C. § 1385), which limits the use of federal military personnel to enforce laws within the United States. The Act allows for the imposition of martial law only where specifically authorized by the United States Constitution (invasion, insurrection, etc.) or Act of Congress. Under the provisions of the unamended NDAA, the president will have the power to impose martial law, and thereby suspend the Writ of Habeas Corpus, on his own authority.
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U.S. Senate Votes for Indefinite, Unconstitutional Detention
Well, now they have done it. On Tuesday a bipartisan total of 61 Senators voted for and only 37 voted against provisions in latest Defense Authorization Act that would authorize the President of the United States to arrest and detain indefinitely, without charges or trial, people suspected of being enemies, or linked to enemies of the United States.
Most Democrats voted against the provisions but only two Republicans voted nay — despite the fact that it is the Republicans more than the Democrats who talk about the importance of abiding by the Constitution. The two Republican Senators who have both read and respected the Constitution of the United States and therefore voted against the travesty were Mark Kirk of Illinois and Rand Paul of Kentucky.
The vote is such a blatant thumbing of senatorial noses at the Constitution of the United States that it might even be called revolutionary — or counterrevolutionary, meaning that it is an attempt to at least partially overthrow the revolution against the tyranny of the British crown beginning with the Declaration of Independence in 1776. When former Senator Russ Feingold (D-Wis.) was criticized by some of his Senate colleagues for following a line of reasoning that is “pre-911,” the Senator, who cast the lone Senate vote against the controversial Patriot Act, replied that his critics were exhibiting a manner of reasoning that might be called “pre-1776.”
It might even be called, for the historically minded, “pre-1215,” the year English noblemen forced King John to sign the Magna Carta, which guaranteed, among other things, the right of habeas corpus.
That is, lest we forget, the right to appear before an independent magistrate and hear the charges against the defendant and to be given a right to challenge those charges, any and all witnesses and the evidence behind the charges. That is what the U.S. Senate would now deny you. Ironically the Obama administration, whose defense of civil liberties has been well short of stalwart, has opposed these provisions that the Senate overwhelmingly passed Tuesday night. The attorney general has said the legislation is not needed and would, indeed, be counterproductive. The Secretary of Defense has said the same. The President has reportedly threatened a veto should the measure pass the House. It is bad enough that this war-making President is seen as the peace candidate when compared to the militaristic Republicans and their neocon, dot.com warriors in the Fourth Estate. It is even more outrageous if the Republicans will now make Barack Obama the defender of the Bill of Rights.
The War Party line, as found in, for example, National Review Online, is that nothing much has changed and only the libertarian “fanatics,” like Ron Paul and Andrew Napolitano, are sounding the alarm. It merely reflects what was accomplished by the passage of Authorization of the Use of Military Force in the immediate aftermath of the terrorist attacks of September 11, 2001. It merely broadens the definition of the enemy to include more than members of al-Qaeda. That, however, leaves untouched the argument that the legislation is radically inconsistent with and unmistakably violates the Constitution of the United States, which the National Review and other allegedly conservative publications purport to hold in minimum high regard.
One can fairly easily anticipate the defense by Jonah Goldberg, who has already endorsed President Obama’s policy of targeting American citizens for assassination without charges or trial. Surely, Goldberg will argue (or perhaps already has), if the commander in chief has authority to put together an assassination list and kill people — even American citizens — without trial, what is the big deal about imprisoning citizens indefinitely without trial?
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Senator Rand Paul Defends Constitutional Liberties
(Transcript of Sen. Paul’s 11/29/11 remarks)
James Madison, father of the Constitution, warned, “The means of defense against foreign danger historically have become instruments of tyranny at home.”
Abraham Lincoln had similar thoughts, saying “America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves.”
During war there has always been a struggle to preserve Constitutional liberties. During the Civil War the right of habeas corpus was suspended. Newspapers were closed down. Fortunately, these rights were restored after the war.
The discussion now to suspend certain rights to due process is especially worrisome given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So, we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.
My well-intentioned colleagues ignore these admonitions in defending provisions of the Defense bill pertaining to detaining suspected terrorists.
Their legislation would arm the military with the authority to detain indefinitely – without due process or trial – SUSPECTED al-Qaida sympathizers, including American citizens apprehended on American soil.
I want to repeat that. We are talking about people who are merely SUSPECTED of a crime. And we are talking about American citizens.
If these provisions pass, we could see American citizens being sent to Guantanamo Bay.
This should be alarming to everyone watching this proceeding today. Because it puts every single American citizen at risk.
There is one thing and one thing only protecting innocent Americans from being detained at will at the hands of a too-powerful state – our constitution, and the checks we put on government power. Should we err today and remove some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists have won.
Detaining citizens without a court trial is not American. In fact, this alarming arbitrary power is reminiscent of Egypt’s “permanent” Emergency Law authorizing preventive indefinite detention, a law that provoked ordinary Egyptians to tear their country apart last spring and risk their lives to fight.
Recently, Justice Scalia affirmed this idea in his dissent in the Hamdi case, saying:
“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”
He concluded: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
Justice Scalia was, as he often does, following the wisdom of our founding fathers.
As Franklin wisely warned against, we should not attempt to trade liberty for security, if we do we may end up with neither. And really, what security does this indefinite detention of Americans give us?
The first and flawed premise, both here and in the badly misname patriot act, is that our pre-911 police powers were insufficient to combat international terrorism.
This is simply not borne out by the facts.
Congress long ago made it a crime to provide, or to conspire to provide, material assistance to al-Qaida or other listed foreign terrorist organizations. Material assistance includes virtually anything of value – including legal or political advice, education, books, newspapers, lodging or otherwise. The Supreme Court sustained the constitutionality of the sweeping prohibition.
And this is not simply about catching terrorists after the fact, as others may insinuate. The material assistance law is in fact forward-looking and preventive, not backward-looking and reactive.
Al-Qaida adherents may be detained, prosecuted and convicted for conspiring to violate the material assistance prohibition before any injury to an American. Jose Padilla, for instance, was convicted and sentenced to 17 years in prison for conspiring to provide material assistance to al-Qaida. The criminal law does not require dead bodies on the sidewalk before it strikes at international terrorism.
Indeed, conspiracy law and prosecutions in civilian courts have been routinely invoked after 9/11, to thwart embryonic international terrorism.
Michael Chertoff, then head of the Justice Department’s Criminal Division and later Secretary of the Department of Homeland Security, testified shortly after 9/11 to the Senate Judiciary Committee. He underscored that, “the history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.”
Moreover, there is no evidence that criminal justice procedures have frustrated intelligence collection about international terrorism. Suspected terrorists have repeatedly waived both the right to an attorney and the right to silence. Additionally, Miranda warnings are not required at all when the purpose of interrogation is public safety.
The authors of this bill errantly maintain that the bill would not enlarge the universe of detainees eligible for indefinite detention in military custody. This is simply not the case.
The current Authorization for Use of Military Force confines the universe to persons implicated in the 9/11 attacks or who harbored those who were.
The detainee provision would expand the universe to include any person said to be “part of” or “substantially” supportive of al-Qaida or Taliban.
These terms are dangerously vague. More than a decade after 9/11, the military has been unable to define the earmarks of membership in or affiliation to either organization.
Some say that to prevent another 9/11 attack we must fight terrorism with a war mentality and not treat potential attackers as criminals. For combatants captured on the battlefield, I tend to agree.
But 9/11 didn’t succeed because we granted the terrorists due process. 9/11 attacks did not succeed because al-Qaida was so formidable, but because of human error. The Defense Department withheld intelligence from the FBI. No warrants were denied. The warrants weren’t requested. The FBI failed to act on repeated pleas from its field agents, agents who were in possession of laptop with information that might have prevented 9/11.
These are not failures of laws. They are not failures of procedures. They are failures of imperfect men and women in bloated bureaucracies. No amount of liberty sacrificed on the altar of the state will ever change that.
A full accounting of our human failures by 9/11 Commission would have proven that enhanced cooperation between law enforcement and the intelligence community, not military action or vandalizing liberty at home, is the key to thwarting international terrorism.
We should not have to sacrifice our Liberty to be safe. We cannot allow the rules to change to fit the whims of those in power. The rules, the binding chains of our constitution were written so that it didn’t MATTER who was in power. In fact, they were written to protect us and our rights, from those who hold power without good intentions. We are not governed by saints or angels. Our constitution allows for that. This bill does not.
Finally, the detainee provisions of the defense authorization bill do another grave harm to freedom: they imply perpetual war for the first time in the history of the United States.
No benchmarks are established that would ever terminate the conflict with al-Qaida, Taliban, or other foreign terrorist organizations. In fact, this bill explicitly states that no part of this bill is to imply any restriction on the authorization to use force. No congressional review is allowed or imagined. No victory is defined. No peace is possible if victory is made impossible by definition.
To disavow the idea that the exclusive congressional power to declare war somehow allows the President to continue war forever at whim, I will also be offering an amendment this week to de-authorize the Iraq War.
Use of military force must begin in congress with its authorization. And it should end in congress with its termination. Congress should not be ignored or an afterthought in these matters, and must reclaim its constitutional duties.
The detainee provisions ask us to give up consist rights as an emergency or exigency but make no room for expiration. Perhaps the Emergency Law in Egypt began with good intentions in 1958 but somehow it came to be hated, to be despised with such vigor that protesters chose to burn themselves alive rather allow continuation of indefinite detention.
Today, someone must stand up for the rights of the American people to be free. We must stand up to tyranny disguised as security. I urge my colleagues to reject the language on detainees in this bill, and to support amendments to strip these provisions from the defense bill.