I confess. I was an Obama groupie. In fact, I was the president of the President’s official fan club. To me, he could do no wrong. But then it happened. He did what no elected official should ever do—as far as a lawyer who’s a proud card-carrying ACLU member is concerned, or as far as any patriotic American is concerned. He assaulted (and then shat on) the constitution, particularly on the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth amendments, which provide the right to peaceably assemble and to petition the government, to be free from unreasonable seizure, to be provided with due process of law and a speedy trial, to be informed of all charges, to be protected from cruel and unusual punishment, and to be protected from the deprivation of liberty without the aforementioned due process. Not only did my President agree to the assault, he did it by gleefully proclaiming his support for the indefinitely detaining, U.S. citizen-victimizing, lock-up-without-charging, liberty-eroding National Defense Authorization Act (NDAA) of 2012, which the House passed on December 14th and the Senate passed the next day.
Just how frighteningly bad is the NDAA? It’s so bad that “The last time Congress passed indefinite detention legislation was during the McCarthy era … (but) President Truman had the courage to veto that bill,” noted Laura Murphy, director of the ACLU’s Washington legislative office. I wish my President had said that. I wish he had said something even stronger, something like, “We’re not a country that runs prisons which locks people away without ever telling them why they’re there or what they’re charged with.” Such profound words. By a lawyer, I’m told. An Ivy League-trained lawyer, they say. A former constitutional law professor, it’s reported. And his name … WTF?! Well, WTF is not his name. His name is Barack Obama, and he said those profound words on June 19, 2007, when he was the politically unrestrained progressive Senator Obama. And he said something quite similar during his January 20, 2009 presidential inauguration when he asked us all to “reject as false the choice between our safety and our ideals.” Wow. What a difference two years make.
Section 1021 of Subtitle D of the 1,000-page-plus NDAA gives this President and all future presidents absolute, i.e. unchecked and arbitrary, powers. Specifically, it affirms “… The authority of the President to use all … appropriate force … (which) includes the authority for the Armed Forces of the United States to detain … (certain) persons … until the end of hostilities.” Those persons are defined not only as members of “al-Qaeda” and “the Taliban” but also as members of “associated forces”—whatever the hell that means. Simply stated, it allows a president to indefinitely detain fellow citizens here in America if he or she merely suspects those citizens of “supporting”—again, whatever the hell that means—terrorist activity either directly or indirectly in the past, present or future. And to make matters even worse, Section 4 allows for rendition, leading to barbaric torture by this country’s surrogates, because it permits “Transfer to the custody … of … any foreign country …”
Supporters of the NDAA try to assuage the public’s justifiable fears by claiming that it doesn’t do anything that the 2001 Authorization for Use of Military Force (AUMF) didn’t already do by allowing citizens to be held in military custody. But they’re wrong. In the basically precedent-setting case of U.S. citizen and alleged al-Qaeda member Jose Padilla, who was captured in Chicago in 2002, the Fourth Circuit Court of Appeals ruled that the AUMF allowed military detention only because he had spent time fighting this country in Afghanistan. But the NDAA doesn’t limit itself to such suspects from foreign battlefields. Or, better stated, it expands the battlefield to American soil—meaning to American citizens right here inside the good ole USA. By the way, before the Supreme Court could ultimately resolve the constitutional issue, Padilla was transferred to civilian custody, was tried in a civilian court, was found guilty, and was sentenced to nearly two decades in prison. All of this was without the need for a presidential omnipotent “answer to no one” secret military tribunal that serves as judge, jury and executioner. The current civilian system worked well and protected us all.
Thomas Jefferson must be spinning in his grave right now. His warning in 1788 about discarding the law simply because it’s convenient to do so is perfectly timely here: “Why suspend the habeas corpus [or constitutional due process, in the case of the NDAA] in … rebellions? The parties who may be arrested may be charged instantly with a well-defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried … while the necessity continues …” The NDAA’s heavy-handed military intrusion upon the civilian legal system is “both misguided and unnecessary” as stated by retired four-star generals Charles C. Krulak and Joseph P. Hoar in their December 12, 2011 New York Times article. These career military men continued by pointing out that, “Since 9/11, military commissions convicted (only) six but civilian courts convicted 400 (including Padilla).”
The idea of armed and nervous itchy-trigger-finger soldiers rumbling tanks up Broad Street looking for your neighbor’s activist, college-student daughter to question and detain her regarding an email in Arabic (or English) she received from an overseas organization is frightening—and permissible under the NDAA. Be afraid. Be very afraid.
But first, be vigilant. In the words of Jefferson, “Eternal vigilance is the price of liberty.” And you can easily pay that price by doing just two things. First, join the ACLU by calling 215-592-1513. Second, express your outrage to the President by calling 202-456-1414.
By the way, although my disappointment led me to resign as the president of the Obama Fan Club, I’m still a member. And that’s because no matter how much or how little the “Obama Dream” has dissipated for me, the idea of a Newt (“Inquisition for Judges I Disagree With”) Gingrich, Mitt (“Liberal, Centrist, or Conservative Depending Upon the Day of the Week”) Romney, Rick (“Einstein”) Perry, or Ron (“All Government Is Usurpation But I Wanna Head the Government”) Paul presidency is an absolute nightmare. American politics has become an assault on the people. It’s an inevitable fact of political life. And some Democrat or some Republican is gonna be elected in 2012. So you and the Constitution can choose to be assaulted by Obama or murdered by Gingrich, Romney, Perry or Paul. Vote rationally and live wounded, or vote recklessly and die permanently.