Congress Okays Extraordinary Rendition of Americans

A measure to dull the sting of Obama's NDAA is unceremoniously killed.

On Tuesday Senate Armed Services Committee Chairman Carl Levin announced that an amendment designed to protect the constitutionally guaranteed civil liberties of American citizens has been quietly stripped from a comprehensive defense spending bill for 2013.

The bipartisan amendment, which was approved just two weeks ago when the Senate voted 98-0 in favor of next year’s National Defense Authorization Act, would have reversed a controversial section (1021) of the law that gives the President sweeping authority to indefinitely jail any American suspected of “substantially supporting al-Qaeda, the Taliban, or associated forces” or committing a “belligerent act” against the U.S. without trial or due process. The authorization applies both to Americans arrested overseas and on U.S. soil, and gives the government carte blanche to ship them to other jurisdictions and hold them until the “cessation of hostilities.” In other words, it codifies the extraordinary rendition of American citizens.

The amendment, put forth by Senator Dianne Feinstein, stated simply:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

That language was replaced with a convoluted string of legalese that one human rights attorney complained, “doesn’t do anything of substance.”

Section 1021 of the NDAA is nothing less than a direct assault on the vision of the framers and an affront to the men and women who have fought valiantly for more than 200 years to protect that vision. But don’t just take my word for it: Since its passage last year, the Act has drawn considerable heat from both the left and the right, and the battle to nullify the sections of the law dealing with indefinite detention has attracted such unlikely allies as the leftist intellectual Noam Chomsky and Sen. Rand Paul, a darling of the Tea Party.

At least 10 states and a number of counties and municipalities have filed legislation critical of the law, and several have passed resolutions calling on the government to suspend the indefinite detention provision. Earlier this month, the Michigan House unanimously passed a bill that would prohibit state cooperation with federal efforts to enforce it.

The fight against indefinite detention has also been playing out in the courts, thanks to a noble effort led by journalist Chris Hedges, who filed a lawsuit in January 2012 challenging the provision on the grounds that its broad language could be used to ensnare reporters, activists and humanitarian workers who work in conflict zones or take a stance on issues such as global terrorism that is contrary to official U.S. policy. Hedges’ attorney, Carl Mayer, has called the case “the most significant constitutional standoff since the Pentagon Papers.”

The Obama administration—while promising never to use its authority to lock Americans up without trial—has nonetheless been fighting tooth and nail in the courts to quash Hedges’ case. On September 12th, U.S. District Court Judge Katherine Forrest issued a permanent injunction, calling the detention provision ambiguous and therefore unconstitutional. The White House responded by appealing to the Second Circuit Court of Appeals for a stay of that order, which was granted in October.

Proponents of the NDAA, including the Wall Street Journal‘s editorial board, defend the detention clause as a “sound” application of presidential war powers, which grant commanders-in-chief broad discretion in times of conflict (including the authority to suspend habeas corpus in times of rebellion or invasion). To whit, both the Bush and Obama administrations have contended they already have the power to detain U.S. citizens without trial under the 2001 Authorization to Use Military Force, and that the NDAA simply lends congressional credence to established policy.

But problems with that argument are not hard to find. For one thing, the War on Terror is not a war in the conventional sense as understood by the framers. It was never formally “declared” by Congress, as required under Article 1, Section 8 of the Constitution; and even if it were possible to declare war on an abstract concept such as terror, how does one determine what constitutes a “cessation of hostilities”? President Johnson declared a War on Poverty in 1964 and nearly 50 years later we’ve yet to have a victory parade. Ditto the War on Drugs, the War on Cancer and the War on Crime. I think you get the point.

As rights activists have rightly noted, the amendment wasn’t perfect. By focusing only on citizens and legal residents, it left large numbers of people living on American soil vulnerable to extra-judicial arrest and detention. But with its removal from the NDAA, we lose even those meager protections. All eyes are now on the Second Circuit Court of Appeals, which is expected to begin hearing oral arguments in the Hedges case early next year. Freedom-loving Americans might want to pay attention.