Last year’s National Defense Authorization Act (NDAA) aroused the angst of those focused on constitutionally guaranteed rights. For the sake of clarity, let’s review exactly which provisions of the NDAA caused concern.
The Act affirmed that “the president has authority under the Authorization for Use of Military Force to direct the armed forces to detain covered persons pending disposition under the law of war.”
On its face, it might be difficult to ascertain why this might be controversial. To understand exactly what this language means, we must take a look at definitions. According to the Act, a “covered person” includes one “who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
And just what is “disposition under the law of war?” According to the Act, such disposition includes “detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.”
In summary, current law allows the president to direct the military to detain United States citizens indefinitely without trial if certain conditions are met. Why does this raise constitutional concerns? Let’s consult the following relevant portions of the Constitution:
Article 1, Section 9: Habeas corpus
The privilege of habeas corpus shall not be suspended, unless when cases of rebellion or public safety may require it.
Amendment V: Due Process Clause
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury … nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law….
Amendment VI: Speedy and public trial by jury; Confrontation Clause
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Although the Constitution clearly guarantees habeas corpus, due process, and a speedy trial by jury, last year’s NDAA eroded these protections. In particular, by allowing the U.S. military to declare national territory part of the “battlefield” in the “War on Terror,” the government can potentially evade the requirements of a trial by jury in “the state and district wherein the crime” was committed. As Senator Udall (D-Colo.) stated last year, “The provisions require the military to dedicate a significant number of personnel to capturing and holding terrorism suspects — in some cases indefinitely — even those apprehended on U.S. soil. And they authorize the military to do so regardless of an accused terrorist’s citizenship, even if he or she is an American captured in a U.S. city.”
Indeed, while the bill does not require detainment of US citizens in military custody “pending disposition under the law of war,” the government still retains the discretionary power to do so. As passed last year, the President can authorize the military to detain United States citizens without criminal charges, a jury trial, or the constitutionally proscribed burden of proof.
This year, a bipartisan group of senators offered an amendment exempting green card holders and United States citizens from these indefinite detention provisions. These senators included Diane Feinstein (D-Calif), Rand Paul (R-Ky.), Mark Udall (D-Colo.), and Mark Kirk (R-Ill.). The amendment simply stated, “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 unless an act of Congress expressly authorizes such detention.” The Senate overwhelmingly passed this by a vote of 67-29. Yet, at Senator John McCain’s (R-Ariz) insistence, the conference committee stripped the bill of this language. In the end, the Senate passed this year’s NDAA without the protections with a vote of 81-14.
The decision by the Senate to pass this legislation should trouble all citizens. As Senator Rand Paul stated, “When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.” The Senate should have heeded the admonition of Senator Diane Feinstein echoed these sentiments, “The federal government experimented with indefinite detention of U.S. citizens during World War II, a mistake we now recognize as a betrayal of our core values; let’s not repeat it."
Of course, some counter that this year’s NDAA prevents constitutional rights from being infringed because of language in the Act which states, “Nothing in the Authorization for Use of Military Force or the National Defense Authorization Act for Fiscal Year 2012 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 to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.”
However, as Rand Paul points out, “Saying that new language somehow ensures the right to habeas corpus – the right to be presented before a judge – is both questionable and not enough. Citizens must not only be formally charged but also receive jury trials and the other protections our Constitution guarantees. Habeas corpus is simply the beginning of due process. It is by no means the whole. Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience.” Truth be told, Senator Paul is correct that the protections were removed because “they want the ability to hold American citizens without trial in our country. This is so fundamentally wrong and goes against everything we stand for as a country that it can’t go unnoticed.”
A majority of representatives rightfully oppose legislation that would violate the Second Amendment’s guarantee that the “Right to keep and bear arms shall not be infringed.” Many other representatives consistently oppose legislation which would violate the “right to privacy” as defined by the Supreme Court. Yet, how is it that so many of these same politicians so easily shy away from implementing appropriate safeguards of the Due Process Clause and a citizen's right to a speedy trial by jury? Unless protections against infringement on our constitutionally guaranteed rights are restored to the NDAA, President Obama should exercise a swift veto.