Senate Bill 1867, the National Defense Authorization Act, drafted in secret by Senators Carl Levin (D-Mich) and John McCain (R-AZ), contains a provision that authorizes the armed forces to arrest and imprison without charge or trial those suspected of involvement in or support of terrorist organizations, including American citizens resident in the United States. Not since the summary detention of Asian Americans during the Second World War on suspicion of potential complicity with the Axis enemies of the United States has a law promised to violate in a more direct and profound manner the rights of the American people.
An amendment offered to eliminate this provision by Senator Rand Paul was defeated. The bill, containing this provision, passed the Senate on December 1 by a vote of 93 to 7. The bill and a comparable defense bill in the House, H.R. 1540, are in a House-Senate conference committee. If the provision survives negotiations between the House and the Senate, it will appear in a final bill headed for the President’s signature.
The history of modern government is rife with examples of the innocent accused. While none of us would favor a state that was less than vigilant in arresting and prosecuting American citizens for whom evidence reveals involvement in terrorist activities, no freedom loving American should accept on the pretext of the war on terror the wholesale and indefinite suspension of all Americans basic rights to Habeas Corpus, to Due Process under the Fifth Amendment, and to notice of the precise charges brought, to a speedy trial on the merits before an impartial judge, to a trial by jury, and to counsel--all guaranteed by the Sixth Amendment.
Under Section 1031 of Senate Bill 1867, if your next door neighbor is merely accused of involvement in or support of some terrorist organization or suspected terrorist organization, military police are free to show up at his door, break it in, place him under arrest, and escort him to a military installation for indefinite incarceration without affording him the right of habeas corpus or a speedy trial on the merits before a jury in the federal judicial system. The power is not unlike that of the Gestapo. The law invites abuse beyond the obvious invasion of protected rights, because it can—like the Alien and Sedition Acts of 1798—be used to eliminate political dissidents of one kind or another.
Consider this example. Let us assume that a person holds the loathsome view that al-Qaeda’s agenda for America is laudable and posts on a web site and in various other public fora that odious message. Let us also assume that this person while advocating destruction of our nation has kept his advocacy as an academic concept and has taken no step toward procuring weapons or other means to bring about that destruction. Under Section 1031(b)(2) of this bill, that person would be definable as one who supports al-Qaeda and would be eligible for summary military arrest and indefinite detention. There are no procedural safeguards in the bill to prevent that result.
We would all do well to remember the words of Thomas Jefferson in his First Inaugural Address, immediately following his successful efforts to secure the non-renewal of yet another great rights violating law, the Alien and Sedition Acts of 1798. That law forbad seditious libel, i.e., any statement critical of federal government officers or measures—a rank offense to the First Amendment. Jefferson gave us these words which apparently have no resonance in the ears of Carl Levin or John McCain: “If there be any among us who wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.”
Senate Bill 1867 permits “detention under the law of war” any person who supports al-Qaeda “without trial until the end of the hostilities authorized by the Authorization for Use of Military Force” law, which is in all likelihood forever. There is likely never to be declared an end to the war on terror, even after terror ceases for an extensive period of time.
The bill is thus an enormous threat to freedom. When an American citizen commits a crime of murder or mayhem in this country, that person is chargeable under our criminal laws and prosecutable with rights of defense secured by the Due Process clause and the Sixth Amendment. Whether the motive of the person is terror, armed robbery, or hate for a person or group, each is entitled to the presumption of innocence, the protections of due process, the right to notice of charges, the right to a speedy trial before an impartial judge, the right to counsel, and the right to a trial by jury. Without those safeguards innocent people will be victimized. Indeed, it is definitely not whether they will be victimized, they will be, for while we may count on prosecutors to prosecute many a criminal, they on occasion through mistake or malice prosecute the innocent.
In the American revolution, our forebears who fought for liberty were viewed by the British as terrorists. They were denied the rights of due process, to trial by jury, and to a speedy trial. The Founding Fathers considered those rights fundamental and the denial of them among the principal justifications for revolution. Those rights are the entitlement of each American citizen who must be presumed innocent, and those rights remain with each unless and until convicted of a crime. Governments are instituted among men, our Declaration of Independence teaches, to protect the rights of the governed. Whenever governments become destructive of those rights, it is the duty of the people to alter or abolish the governments.
At a time when our limited federal government has been transformed into an unlimited bureaucratic oligarchy (an unlimited government that runs rough shod over strictures on power, the non-delegation doctrine, the separation of powers, and the rights of Americans), it should come as no surprise that two senior United States Senators who have contributed to that transformation over the years, Carl Levin and John McCain, would think it appropriate to deny summarily the rights of all Americans to notice of criminal charges against them, a speedy trial, a trial by jury, and to counsel of their choosing if accused of support for or involvement with terrorists. I am quite certain that neither Levin nor McCain thought when they authored Section 1031 of Senate Bill 1867 that they were aligning themselves with the historic enemies of the Founding Fathers’ republic, with those who harbor ambivalence or disdain for the sacred rights indispensable to individual liberty that are designedly protected by our Constitution and Bill of Rights, and with those who find the pretext of war sufficient to justify the denial of rights outside the theater of war.
In their zeal to combat terror, they abandoned their oaths of office which forbid them from taking action contrary to the United States Constitution. Indeed, it may well be said that those who favor Section 1031 commit an offense against the Constitution as great as many of the offenses they aim to interdict.
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In one sense, a terrorist intent on bringing down the American way of life and robbing Americans of the liberty they cherish is not unlike a politician who with more refinement achieves the same end by codifying provisions that render null and void the fundamental rights to habeas corpus, the Due Process clause of the Fifth Amendment, and the rights of the accused protected by the Sixth Amendment. They are both, albeit with different means, aiming to destroy our Constitution of liberty.
We can only hope that Section 1031 is removed, but if it is not we should long remember those who advocated it and caused it to be adopted. Because they have sacrificed our inalienable rights, we would do well to vote them out of office in favor of others who respect the fundamental tenets of our Constitution and Bill of Rights and who will dutifully uphold their oaths of office.
� 2011 Jonathan W. Emord - All Rights Reserved