Fundamental individual liberty and rights are central to our Constitution, and protection of the same from governmental infringement. Yet we see on a nearly daily basis, attempts by sometimes well-intentioned politicians, locally and nationally, to trample those fundamental rights in the name of a “greater good.”
The latest case in point, the National Defense Authorization Act (NDAA) passed Congress with broad bi-partisan support, (proving once again that there is little difference between the two major political parties), and will reportedly be signed into law this week by President Obama.
The Act states, “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.” And just who are those “covered persons” that can be so detained? Section 1031 seems innocuous enough by identifying anyone who had a part in the 9/11/01 attacks or “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities,” against the U.S. But then this Trojan Horse language follows, “including any person who has committed a belligerent act.”
A broad interpretation of “belligerent” includes “hostile and aggressive,” and is not limited to the more specific acts of war, which the drafters of the legislation may have intended. This language swings the door of interpretation wide open to include any threatening, antagonistic, contentious, or confrontational conduct perceived to be a threat to the nation. It is not beyond the realm of possibility to see this president or any future president use this provision as justification for military detention without due process of Tea Party protestors or Occupy Wall Street activists.
The Fourth Amendment to the Constitution has served to enforce due process and habeas corpus by preventing unlawful arrest and detention, yet this one Act (NDAA) grants virtually unlimited power to the president to detain potential “terrorists” indefinitely, with all the ignominy of a military Guantanimo-like detention. And one of the most striking components of the legislation is that the “battlefield” of the “War on Terrorism” is expanded to include the homeland of the United States of America.
The Act, itself a violation of law since it was drawn up, debated, and passed in closed committee sessions without a single hearing, is clearly a violation of posse comitatus, established in 1878 which proscribes the use of the military on domestic soil to enforce the laws of the land.
While I rarely find myself in agreement with the American Civil Liberties Union (ACLU), on this issue we’re of one accord. In their write-up of the NDAA they averred the Act “will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians.” They continue, “The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.”
Section 1031 of the Act concludes with an attempt at assuaging civil libertarian concerns by stating, “Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” It may not be “intended,” but the act does precisely that.
Section 1032 further attempts to mitigate the far-reaching affects of the legislation by stating that the, “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” While not “required,” it clearly leaves the door wide open for the possibility of military detention of citizens.
For students of history, this legislation eerily has a parallel in the Enabling Act of 1933 in Germany, where rights enumerated in the Weimar constitution were repressed or precluded by expanded central government control. The subsequent staged attack on the Reichstag or parliament building, led to the Reichstag Fire Decree, finalizing the transition of Adolph Hitler from Chancellor of the Republic, to Führer. Is that all it would take to make that final transition here?
At what point do we as citizens reject and stand up against such trampling of civil liberties? There was so much disapprobation over the Patriot Act, and this goes so much further. It’s impossible to not see another parallel from 20th century Germany in the words of Martin Niemoller, “First they came for the communists, and I didn’t speak out because I wasn’t a communist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak out because I wasn’t a Jew. Then they came for me, and there was no one left to speak out for me.”
AP award winning columnist Richard Larsen is a regular contributor to the Idaho State Journal. He is also President of Larsen Financial, a brokerage and financial planning firm in Pocatello, Idaho, and is a graduate of Idaho State University with a BA in Political Science and History and former member of the Idaho State Journal Editorial Board. He can be reached at [email protected].