Soft On Terror, Or Hard On The Constitution?

This Hub follows the story of the National Defense Authorization Act 2012, which I call the "Battlefield USA" Act. The NDAA appears to fatally undercut basic civil rights, including the fundamental principle of "habeus corpus," established in English law since long before the existence of the USA. The Hub also notes other legislation which may tend to have similar effects, such as the so-called "Federal Restricted Buildings and Grounds Improvement Act of 2011."

The most recent update or updates are posted at the top of the page; the older posts are in chronological order beginning with the "Original Post" further down the page. All updates are labeled and dated.

Source

Update 7/26/2012

The "Battlefield USA" Act is receding into history, as 2012 is more than halfway through, and the National Defense Act 2013 is working its way through the legislative process. But NDLA 2013 bears the marks of the controversy around its predecessor. Congress has seen fit to include three sections--1031, 1032, and 1033--clarifying the matter of habeus corpus rights and indefinite detention. The language is reassuring:

(a) Rule of Construction- Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights.

(b) Notification of Detention of Persons Under Authorization for Use of Military Force- Not later than 48 hours after the date on which a person who is lawfully in the United States is detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note), the President shall notify Congress of the detention of such person.

(c) Habeas Applications- A person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) shall be allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody.

One hopes that this will be more than a mere fig leaf.

Capitol Dome.  Image courtesy Wikimedia Commons.
Capitol Dome. Image courtesy Wikimedia Commons.

Original Post: So Much For The Right To Due Process

I don't normally write on topical issues; Hubpages is a place for "evergreen content," not momentary, passing concerns. But every rule has exceptions, and this is one.

Last night at work, a co-worker asked me, "Did you hear? The Senate passed a law today that would let the military take any American citizen off the street and hold them indefinitely without trial!"

I was highly skeptical. "I can't imagine that even if that's true," I said, "that such a bill would either pass the House or be signed by the President. Due process still means something in this country."

How could I have failed to hear about such a fundamental threat to the Constitution, if this were really true? Indefinite detention without trial would amount to a classical "Star Chamber," immune to all judicial oversight, all right of appeal. It would be wide open to abuse.

And after all, I reasoned, such things were at the root of some of the tenderest Colonial grievances with the government of His Majesty King George III. Those grievances inspired the Constitutional protections that have historically made the US a beacon of freedom to much of the world. So this morning I got on Snopes.com, fully expecting to find another urban myth in full flight.

Well, he wasn't as far wrong as I imagined. Yesterday's vote wasn't quite to authorize indefinite detention of Americans in the US, and specifically to empower the military to be the ones to do the detective work. It was "merely" on an amendment which would have stripped the language doing that out of the larger "National Defense Authorization" bill.

Needless to say, a defense spending authorization bill will HAVE to be passed, with two (or at least one-and-a-half) wars on--so the question of whether that language is in or out of the bill is crucial.

[Originally, I wrote: "I was right about one thing, at least--the White House has said that the Authorization Bill, should it pass in its current form, WILL be vetoed." But see below for what actually happened.]

The GOP--or much of its brain trust, at least--is said to welcome such a prospect because it will allow them to paint President Obama as 'anti-military' and 'soft on terror.'

Better that, I would argue, than 'hard on the constitution.'

This may, by the way, be the first time I actually agree with Rand Paul on something. But it's not just me; it's also the Directors of the FBI and National Intelligence, who have said that this measure, far from helping security, may actually disrupt their ability to investigate terror threats.

If you agree, I'd suggest you say so now. The latest news update (on Huffington Post) expects the NDA Act to pass Congress by the weekend.

Hey, they want to get home for the holidays.

If you do want to contact your local Congresscritter, you can do so via the "Open Congress" link in the links section below. I just did so.

Click thumbnail to view full-size
Democratic Senator Mark Udall authored the amendment to strip the "battlefield USA" language from the National Defense Authorization Act.  Image courtesy Wikimedia Commons.Republican Senator Rand Paul was one of the most outspoken critics of the "battlefield USA" language, and supported the Udall amendment.  Image courtesy Wikimedia Commons.
Democratic Senator Mark Udall authored the amendment to strip the "battlefield USA" language from the National Defense Authorization Act.  Image courtesy Wikimedia Commons.
Democratic Senator Mark Udall authored the amendment to strip the "battlefield USA" language from the National Defense Authorization Act. Image courtesy Wikimedia Commons.
Republican Senator Rand Paul was one of the most outspoken critics of the "battlefield USA" language, and supported the Udall amendment.  Image courtesy Wikimedia Commons.
Republican Senator Rand Paul was one of the most outspoken critics of the "battlefield USA" language, and supported the Udall amendment. Image courtesy Wikimedia Commons.

Update for December 2, 2011

The NDA has passed the Senate with the "Battlefield USA" language intact, efforts by Senator Diane Feinstein to amend it having failed--I think. The legislation will have to be reconciled with the House version (which also includes some provisions for indefinite detention.) And this sets up a confrontation with the White House--which will at least trigger some more extensive media coverage. It remains to be seen whether the public will see that eliminating Constitutional protections for suspected "Al Qaeda supporters" amounts to eliminating Constitutional protections for everybody.

Accusations, after all, are cheap--and could be awfully convenient for all sorts of people, from angry neighbours to corporate wrong-doers bent on covering up to over-zealous or misguided intelligence officials to politicians attempting to suppress dissent.

The Huffington Post, which has probably been the most consistent organization to report on this issue, says that "The legislation also would deny suspected terrorists, even U.S. citizens seized within the nation's borders, the right to trial and subject them to indefinite detention."

The HP report says there is an exemption or American citizens, though. For them, detention is not required to be by the military--they could be held by civilian authorities, like the CIA.

Boy, that's a relief.

Senator Feinstein did manage an amendment which thoroughly muddies the waters. According to an earlier HP story, "The new amendment specifies that the current practices may not change, although it also says explicitly that the military can pursue Americans at home." Senator Durbin of Illinois, an opponent of indefinite detention, saw this as forcing the question to the Supreme Court.

Perhaps. And perhaps my initial reaction, that "no imaginable Supreme Court" would uphold indefinite detention, will be proven correct.

Perhaps.

Update for December 14, 2011

Stay tuned.

Congress has done some sort of reconciliation process, and Senators Levin and McCain, who sponsored the Senate version have been out politicking for their baby. They feel that they have answered the concerns about their power-grab--er, "legislation."

Others see it quite differently. Mother Jones Magazine said:

By making addressing the security concerns, but not the ones related to civil liberties and the rule of law, Congress is basically asking the administration how serious it was when it said in its Statement of Administration Policy that the detention provisions in the NDAA would be "inconsistent with the fundamental American principle that our military does not patrol our streets." Obama has said before that the choice between security and American ideals is a false one, but in practice the administration has erred on the side of security and secrecy. With Congress having given the administration "security," we will now see whether the administration thinks those American ideals are just as worth fighting for.

On the right, the New American was equally pointed:

Constitutionalists are urging that the time is now for concerned citizens of the United States to contact their federal representatives and let them know that they will hold them accountable for their vote on this absolute abolition of the rule of law.

It still remains to be seen whether the Administration will hold firm in defense of the Constitution. One may wonder, given that their expressed objections have been more oriented to security issues.

Still, one can hope. After all, the President used to teach Constitutional law.

Paint It Black

Well, so much for fond hopes. Late today, December 14, the White House announced that the President's advisors would not recommend a veto of this 'must-pass' legislation, saying that the Administration's concerns had been adequately addressed.

Of course, those concerns do not include civil rights. Only a few die-hards in Washington seem to care about that any more.

So, this is a done deal. Now for the court challenges. . . the ACLU can be your friend.

New Year's Update: Another act in the play

Is it a farce or a tragedy?

At any rate, President Obama signed the NDAA into law on New Year's Eve, accompanied by a signing statement.

Bring on the court challenges.

Update: 1/24/12

Above, I wrote "Bring on the court challenges." As of the 17th of this month, the first such suit arrived, courtesy of reporter Chris Hedges and his pair of crusading attorneys. And the object of that suit?

Mr. Hedges is suing the President in connection with the indefinite detention provisions, according to a story that inexplicably failed to get much traction in the mainstream press. He evidently feels a personal dimension in the NDAA's threat to civil liberties:

As an international correspondent and world-renowned journalist, Hedges has traveled the globe and says he has been put in some hairy situations. Under the NDAA, he says, he might as well be considered a war criminal in the eyes of America.
Under NDAA, the military can enforce indefinite detention on anyone “who was a part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States.” As Hedges and others point out, groups such as “associated forces” are never defined, nor are determinations like “substantially supported.”

“I have had dinner more times than I can count with people whom this country brands as terrorists,” writes Hedges.“But that does not make me one.”

Regardless, any affiliation with a group branded as such could lead authorities to leap to such conclusions.

Mr. Hedges goes on to suggest that the motive for enactment of the NDAA is that corporate interests fear increasing unrest in the style of--or more violent than--the "Occupy" movements, and don't trust police to protect them. "They want to be able to call in the Army--and now they can."

Personally, I don't quite believe it; while the influence of corporate money on the political process is a matter of public record in a good many ways, I haven't seen anything so far that suggests that the PR guys actually get to write the legislation.

But whether or not we give credence to such theories, the fact remains that from a legal point of view, NDAA opens up huge loopholes in the basic protections that Americans--and for that matter, every human affected by American law, whether citizen, resident or visitor--have long enjoyed. For that reason alone, I wish Mr. Hedges luck. When you sue a sitting President, you need it.

Update: 3/1/2011--So Much For The Right To Assemble

Maybe Republicans have a point about big government being a threat to freedom in American--because it kind of looked that way to me, when I found out that they joined with Democrats to pass a new law which appears to enact sweeping restrictions on the First Amendment Right of peaceable assembly. As reported on the website rt.com:

The US House of Representatives voted 388-to-3 in favor of H.R. 347 late Monday, a bill which is being dubbed the Federal Restricted Buildings and Grounds Improvement Act of 2011.

H.R. 347 was passed by the Senate with little fanfare back on February 6, so it will likely be headed for President Obama's desk next. (It is not clear whether the two versions of the bill need to be reconciled.) It's meant to be an update "To correct and simplify the drafting of section 1752 (relating to restricted buildings or grounds) of title 18, United States Code."

Without recapping the entire bill, this egregious legislation would criminalize entry to a restricted "building without permission or with the intent to disrupt a government function with a federal offense if Secret Service is on the scene." That in itself doesn't sound too unreasonable. But the kickers come in the definitions.

First, restricted buildings (and grounds) can include any site in which a person protected by the Secret Service may be visiting--even if this is not public knowledge. Persons receiving such protection may include not only the President and Vice President, but Presidential candidates, family members, and various dignitaries such as foreign heads of state.

Also covered by the act are "National Special Security Events." Many Americans have not yet heard this term, but:

...while presidential inaugurations and meeting of foreign dignitaries are awarded the title, nearly three dozen events in all have been considered a National Special Security Event (NSSE) since the term was created under President Clinton. Among past events on the DHS-sanctioned NSSE list are Super Bowl XXXVI, the funerals of Ronald Reagan and Gerald Ford, most State of the Union addresses and the 2008 Democratic and Republican National Conventions.

Moreover, it's not just entry to specified places which is criminalized. Also prohibited are:

  1. disrupting the orderly conduct of “official functions,”
  2. engaging in disorderly conduct “within such proximity to” the event, or
  3. acting violent to anyone, anywhere near the premises.

I certainly don't want to defend violent behavior, but it's already illegal, of course--generally, we call it "assault." Is it really necessary to pile on more legal jeopardy? And would even this least-egregious of the provisions create more potential for abusive prosecutions? It's not difficult to imagine minor 'resistance to arrest' in the over-heated context of a political protest being construed as 'violent behavior.' Disorderly conduct is still less well-defined, and isn't disruption the whole purpose of political protest? But perhaps most troubling is the geographical extension--also not well-defined, it would appear--implied by those three little words "within such proximity."

Also covered are "attempts" to do any of the above, and "conspiring" to do any of the above. Would this imply that if, say, a Tea Party member protesting at the Democratic National Convention--it will be a National Special Security Event--makes a gesture (mis)-interpreted as violent by a nervous police officer, protest organizers could be on the hook for conspiracy under this law? Or similarly for a pro-choice activist picketing the RNC? An "Occupy..." demonstration down the block from an appearance by Rick Santorum (who has applied for Secret Service protection?)

Penalties under the law? Glad you asked. An unspecified fine--it must be defined in Section 1752, Title 18, which this law is 'cleaning up'--or up to a year in prison. It's up to ten years if you are carrying a "dangerous weapon," or if someone gets hurt.

Update--3/13/12

An amendment to repeal the provisions of the NDAA most obnoxious to civil rights has been referred to committee in the House of Representatives. Although it is not clear that this bill will be able to advance--its co-sponsors include only one Republican, so formally at least it is very much a minority project at present--it is a least a visible sign that Congressional disquiet with the NDAA continues to bubble.

As detailed in the linked story, the bill was sponsored by Representatives Smith and Udall.

Update--4/20/2012

An NDAA story I missed initially was the hearing held at the end of March; a number of plaintiffs sued the Obama Administration over the NDAA's possible effects on civil liberties. Naomi Wolf posted her illuminating notes, taken at the hearing. They are well worth reading, though they require some persistence, as any 'raw' notes are apt to do. The term 'support' (as in "support for terrorists") is certainly shown to have no concrete definition under the law, and therefore the limits on potential prosecutions under the law seem troublingly minimal.

Also, the European Union Times had a nice story summarizing some of the legal and Congressional responses on March 31st--which raises the question why American sources aren't doing a better job of providing information on this issue.

Update 4/27/2012

State legislatures, including Virginia, Arizona and Hawaii, have been pushing back against the "Battlefield USA Act." It's interesting to observe the diversity of opposition to the NDAA; some are hardcore Tea Party types who concentrate nearly all of their ire against the NDAA on President Obama (ignoring the heavy Republican support for the NDAA in Congress), while some are definitely on the left (such as the ACLU.)

Here are several links giving a 'snap-shot' of these events. (Again, as has been true throughout the NDAA affair, it's rather surprising how little mainstream coverage any of this is getting.) Included is a link to a Washington Post op-ed piece attacking Virginia's law and defending NDAA 2011. I don't agree with it, but it's worthwhile considering the arguments made. The comments posted in response to it are well worth your time as well.

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Comments 17 comments

Doc Snow profile image

Doc Snow 5 years ago from Atlanta metropolitan area, GA, USA Author

I've taken time to write a Hub of a sort I don't usually do, and to use every other little soapbox I have, in order to draw attention to a really, really bad idea before it becomes a reality.

So you can tell what I think.

What about you?


JT Walters profile image

JT Walters 5 years ago from Florida

I think we are discussingt he failures of government as tactfully as we can. The bill is designed to oppress it has nothing to do with actually terrorist threats. And many of us have been discussing this for a very long time on Hubpages. It might not be bread and butter issues but it can't be ignored as if it doesn't exist either. We have to minimally acknowlegde it is occurring.

JT


Doc Snow profile image

Doc Snow 5 years ago from Atlanta metropolitan area, GA, USA Author

Media reaction seems to be well-described as a "minimal acknowledgement," all right. Few stories at all, and just one editorial I know of--in the NY Times, at least.

Don't people care that this would basically eliminate essential Constitutional protections? Why not--they sure don't claim to trust their elected officials. So why would they accept this without a loud howl of outrage?


Jt Walters 5 years ago

The Patriot act eliminate constitutionala protections this is just one step further. I believe and don't quote me that we have been using rendition against our own USA citizens in the USA since the 1994. And I believe parts of the Patriot act are expiring and that is why they are adding additional protections. Media works for coporate America and hence government they don't want to lose their fat paychecks. The last journalist with integrity was Dan Rather and they fired him.

We are all writing about it. It has been really bad for a very long time.

People are getting pepper sprayed when peaceful demonstratiing. How much more do you think they can take?

JT


Doc Snow profile image

Doc Snow 5 years ago from Atlanta metropolitan area, GA, USA Author

"How much more do you think they can take?"

Evidently a bit more than I thought.

But it's still a good question. Right now the OWS movement encampments have mostly been cleared away by local PD. It remains to be seen whether OWS can make a 'second act' for their story happen, but I think it's a safe bet that the dominant take unless and until there's that 'second act' will be that "it's all over."

But that won't be the case, not unless there is a dramatic economic recovery out of the blue. As long as the issues of economic justice and political participation and equity continue not to be addressed, the likely outcome will be increased radicalization and unrest.

Of course, it seems that protesters could now face the prospect of being labeled a terrorist and being effectively 'disappeared.'


JT Walters profile image

JT Walters 5 years ago from Florida

Right. And what does that make this country? A Demcoracy or a Communist police state?

We are all writing about it. Trust me most of us don't really wish to write about politics. It is ugly and gets evry nasty because of partisanship. We do it to educate. We do it because we are united in making this country a better place to live and because we have to.

And we might be punished for it we are aware but it is better to speak out about unpresidented expansion of presidential powers and living in a police state then to keep your mouth shut and head downn and wait for them to come for you. In Nazi Germany no one thought they would ever be sent to concentration camps and by the time they just thought if they were quite the government would leave them alone.

Better to speak out against government abuse and social injustice then to continue living like this everyday and letting things get worse.

Thos of us who write political hubs do so because we believe America can be a better country to live in for its people.

JT

PS

Better then sittiing home and doing nothing.


claptona profile image

claptona 5 years ago from Earth

Hey Doc,

Great article.

Were you hoping for the same thing when the Patriot Act went into effect?

Do you see the TSA groping of passengers boarding and leaving flights in the USA - hoping the Supreme Court will stop that too?

When you hope that these idiotic bills passed by the Senate and/or the House of representatives will be overturned by the Supreme Court - you buy into this concept that our government is out to protect us.

I am more concerned with what the Congress and President are doing to curtail my freedoms vs. any terrorist attack.

With freedom comes risk. I will choose freedom over government curtailment of my freedoms any day of the week.

We need to stop even the slightest bit of legislation that even remotely infringes on our freedoms.

This bill should never have left the Senate - it goes against most things in the Constitution.

It does not surprise me though - Congress and the President are hell bent on limiting the freedoms and movement of all people within America.

This legislation proves that point.

Americans should impeach each and every Senator that voted "yeah" for that bill.

JMHO and my 2 cents worth.

Cheers


Doc Snow profile image

Doc Snow 5 years ago from Atlanta metropolitan area, GA, USA Author

JT--yes, voicing your opinion is much better than watching reruns or whatever, even if it's not always the most "fun." Anything unexercised tends to wither away, including the right to free speech.


Doc Snow profile image

Doc Snow 5 years ago from Atlanta metropolitan area, GA, USA Author

Thanks, claptona.

I see 'the government' as much less monolithic than you seem to. I may be right or not, but the judiciary isn't the same as the legislature which isn't the same as the administration. No doubt they all like to be as powerful and as important as possible, but they can't all be at the top, which of course forces them to act against one another much of the time--not against you or I.

Which is why I hope this bill gets vetoed. When it does--if it does--the opportunity to debate the issue and get coverage will open once again. Which would be a good thing, though not a guarantee that the right result will emerge.

And yes--BTW--I thought the Patriot Act was abominable, too.


Hello, hello, profile image

Hello, hello, 5 years ago from London, UK

Thank you for this interesting hub.


Doc Snow profile image

Doc Snow 5 years ago from Atlanta metropolitan area, GA, USA Author

Hi, hh! As always, it is good to hear from you.

You probably know the saying--I've usually heard it described as an old Chinese curse--"May you live in interesting times." These times do seem to qualify.


tirelesstraveler profile image

tirelesstraveler 4 years ago from California

Would really have liked it if this administration had done what they promised; putting the bills on their website so we could read them. I am tired of having to depend on the media to tell us what's in a bill. Thanks for keeping up with this.


Doc Snow profile image

Doc Snow 4 years ago from Atlanta metropolitan area, GA, USA Author

I'm not sure about the 'this administration' part--one way or the other!--but Federal legislation (and more) is in fact available online, via the Library of Congress. This is the link to the front page of that site:

http://thomas.loc.gov/home/thomas.php

Thanks for commenting!


tirelesstraveler profile image

tirelesstraveler 4 years ago from California

Is it available before it is passed?


Doc Snow profile image

Doc Snow 4 years ago from Atlanta metropolitan area, GA, USA Author

Yes, it is. I'm not sure when text becomes available exactly, but if you go to the "About THOMAS" section you'll see that you can search legislation at any stage of the process.


colorfulone profile image

colorfulone 8 months ago from Minnesota

H.R. 347 Federal Restricted Buildings and Grounds Improvement Act

Protesting Trump rallies is a crime that is punishable to up to ten years in prison...thanks for once to Obama signing it into law in 2011.


Doc Snow profile image

Doc Snow 8 months ago from Atlanta metropolitan area, GA, USA Author

An irony, to be sure. Though I still see it as an abridgement of Constitutional rights, and wish it were otherwise.

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