Will the Legal System Prevail and Save America from Fear Itself?
What are we to make of the surprising news that President Obama has reversed his pledge to veto the National Defense Authorization Act of 2012? Critics claim that section 1031 of the Senate’s NDAA will make it legal for the government to arrest and imprison U.S. citizens without a speedy and public trial by jury, as required by the Bill of Rights.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…nor be deprived of life, liberty, or property, without due process of law…
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to 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 for his defence.
Our first instinct with this President is to trust that he must know something we don’t. Surely, the administration that coordinated the demise of Osama bin Laden, and championed a jury trial in New York City of the 9/11 mastermind, would not commit itself to this action that the ACLU says “contains dangerous, sweeping worldwide indefinite detention provisions”?
While the president has a constitutionally-defined role as commander-in-chief in times of war, the risk of abuse is never far away when it comes to unlimited executive powers. It is, therefore, and historically has been, the role of the judiciary to ensure that all power bestowed is done so within enforced constitutional limits of that power.
If signed into law by President Obama, the NDAA’s section 1031 will extend the battlefield in the “war on terror” to American citizens, on U.S. soil. It will apply the established principle, enumerated in the fifth amendment, that combatants in any war are subject to military detention.
This will be the first time since the McCarthy era that indefinite detention, outside a “live war”, has been enshrined in U.S. law. And even then, the Internal Security Act was passed by Congress over the veto of President Truman, who argued it “would make a mockery of our Bill of Rights”.
The issue here, with the War on Terror, as with the Red Scare sixty years ago, is that legislators are having a hard time reconciling their responsibility to protect American citizens, using powers constrained by the original constitution, to fight an unconventional war, against an unconventional enemy, without soldiers, uniforms or battlefields. As Geoffrey Manne and Seth Weinberger argue in their article, “by passing a law that essentially abdicates responsibility… Congress has failed in its basic responsibility to define and protect the legal rights of American citizens.”
Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals: “We’re facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life,” he said. “When you join al-Qaida you haven’t joined the mafia, you haven’t joined a gang. You’ve joined people who are bent on our destruction and who are a military threat.”
Some argue that this new provision is simply codifying practice that already occurs, and powers that already exist under the original 2001 AUMF (Authorization for Use of Military Force). Perhaps, therefore, by clarifying these powers, any abuses can be more easily tracked and challenged? Or, additionally, perhaps the extension of executive power — final edits to the law gave the president greater discretion to prevent individuals from being handed to the military — will also limit excesses?
Regardless, there is still a risk that this law could become a portentous and draconian Constitutional precedent. As such, it is well within the role of the Supreme Court to issue a ruling striking the law down. The simple danger here is that by casting a net wide-enough to catch every suspected and potential terrorist, you also catch the innocent, and deny them the fundamental right to have their innocence proven in a court of law.
On this side, Libertarian Rand Paul, Amnesty International and the ACLU, as expected, have come out fighting against the law. “Detaining citizens without a court trial is not American”, Paul argued, and if the law passes “the terrorists have won”.
Whether the Supreme Court will act, however, remains to be seen. And if it does, the Court may decline to comment on the key issues raised by indefinite detention. After all, this is the Court that failed, in the Hamdi decision, to tackle the scope of the definition of “enemy combatant” — key to what what the Court called “the threshold question” of “whether the Executive has the authority to detain citizens who qualify” as such.
What the Supreme Court has repeatedly noted, however, including in the Hamdan case of 2006, is that the executive branch, like Congress and the courts, “possess no power not derived from the Constitution.” The Supreme Court has also repeatedly ruled on the unconstitutionality of detention without trial in Guantanamo — and in a dangerous precedent of non-enforcement, nothing has yet been done by the executive.
So as much as it rests on the shoulders of the judiciary to uphold the constitution and check the powers of the executive, the executive and legislative branches must then be trusted to act on the advice of the Court. In the 2008 Guantanamo ruling, Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”
Ultimately, constitutional government rests on the people holding their elected officials accountable not only for protecting and defending physical threats to our security, but also intellectual threats to our form of government itself. The legal system must hold the elected officials accountable to the Constitution and people must care enough to force elected officials to abide by the decisions of the Court. We hope that this attempt to deprive American citizens of their freedom, without the due process of a speedy trial, may be that proverbial bridge too far that leads to a general awakening of liberty.
- President Agrees to Indefinite Detention of U.S. Citizens (legallyeasy.rocketlawyer.com)
- Obama Caves Again on Civil Liberties (andrewsullivan.thedailybeast.com)
- Congressional cowardice, not military detentions, is the real threat to civil liberty (thehill.com)
- Military given go-ahead to detain US terrorist suspects without trial (guardian.co.uk)
- Justices Rule Terror Suspects Can Appeal in Civilian Courts (nytimes.com)