In the most recent offering on these pages your humble servant outlined how the National Defense Authorization Act (NDAA) for Fiscal Year 2012 permits the indefinite detention of American citizens without trial. [1] Also discussed was the rather half-hearted attempt to assuage the concerns of those fearing the erosion of constitutional rights by language in the Act providing that it should not “be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States,” [2] a provision that does nothing for detainees who are never charged with a crime.
Since the new law says that existing law regarding the detention of American citizens is not impacted by the 2012 NDAA, it is interesting to examine what certain members of Congress, and the President, understand that existing law to be. “Bone-chilling” is not a hyperbolic description of what such an examination reveals.
Senator Carl Levin (D-Michigan) was a sponsor of the Senate version of the bill, and is unrepentant about the potential for the indefinite detention of American citizens. What’s more, he thinks it’s perfectly constitutional. “Al Qaeda is at war with us,” the Christian Science Monitor reported him as saying. “They brought that war to our shores. This is not just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said, and I am going to read these words again, ‘There is no bar to this nation's holding one of its own citizens as an enemy combatant.’” [3]
So, if you’re Senator Levin, the 2012 NDAA may not affect existing law regarding the rights of U.S. citizens, but it is constitutionally permissible to detain them indefinitely without trial if it is decided that they are enemy combatants. Senator Levin didn’t need any stinkin’ 2012 NDAA to indefinitely detain Americans.
In accord is none other than that harbinger of hope and change, President Obama, the same individual who thought that bombing Libya without first consulting Congress wasn’t a violation of the War Powers Act. [4] On November 17, 2011 the Executive Office of the President issued a Statement of Administration Policy regarding the Senate version of the 2012 NDAA. [5]
Of concern to the Administration were the provisions of Section 1031 of the Senate version, [6] which were substantially the same as the provisions of Section 1021 of the Act as eventually enacted, and which contained the language permitting the indefinite detention of American citizens. In delineating its concern, the Administration made reference to the Authorization for Use of Military Force, which, you will recall, was the congressional authorization to the President for a military response to the 9/11 attacks. Regarding the provisions of the Senate version of the bill, the Administration said this:
“Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.”
What the President was essentially saying was that the President already had the authority to detain American citizens indefinitely without trial because that power was inherently granted in the Authorization for Use of Military Force enacted in response to the 9/11 attacks, but that spelling out that authority in the 2012 NDAA might open up a can of worms, since people would notice it, and efforts might be made to take the authority away, which the President would consider to be a bad thing. So the President didn’t need any stinkin’ 2012 NDAA to indefinitely detain American citizens either, and really wished that the Congress wouldn’t bring the subject up.
Senator Lindsey Graham (R-South Carolina), for his part, wanted to point out that the measure was making clear “that the homeland is part of the battlefield.” “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” Graham said according to the Christian Science Monitor. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
So according to Senator Graham, if it is decided that an American citizen helped al-Qaeda, and that citizen asks for a lawyer, the proper response is to tell that citizen to shut up. Obviously, he is not the only one in Washington who holds that view. Anyone who thinks that giving this kind of power to the government isn’t dangerous to the citizenry should have flunked history if he didn’t.
Regarding the elections to be held in the United States this year, your humble servant sees no reason for returning any member of Congress who voted for the 2012 NDAA to office. While it is not at all clear that the major political parties will offer a sufficient number of candidates opposed to government having this kind of power over citizens, sending such politicians to the private sector may serve as something of a future deterrent.
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