Note: Last Wednesday, President Barack Obama signed the National Defense Authorization Act of 2013 into law despite admitting that he “signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists.” [See CAIR's statement]. It is deeply disappointing that the President has once again allowed Congress to restrict his authority to transfer or prosecute detainees at Guantanamo. ACLU Executive Director Anthony Romero said, “[The President's] signature means indefinite detention without charge or trial, as well as the illegal military commission, will be extended. He has also jeopardized his ability to close Guantanamo during his presidency.” Although many of the dozens of prisoners have been cleared for transfer, they too will continue to be held without being charged with a crime.
Over eleven years after the tragic attacks of 9/11, Americans are still experiencing its residual effects as our rights and liberties continue to be unjustly compromised in the interests of national security. Not only were planes hijacked that day, our freedoms, an entire religion, and American’s sense of security were also annexed and expropriated. Our nation has recovered remarkably; but while the spirit of the American people is resilient, we are reminded constantly that our country -
though one Nation, under God – is now in fact divided on multiple fronts, does not equally uphold liberty and justice for all of its Constituents, and all that for which it stood is no longer defined the same way.
One such reminder manifests in the form of legislation like the National Defense Authorization Act, or NDAA – an act passed by Congress every year to monitor the budget for the U.S. Department of Defense.
Over one year ago, on December 31, 2011, President Obama signed into law the NDAA for fiscal year 2012, or H.R. 1540, amidst a fury of controversy over unprecedented power granted to the military to seize suspected terrorists anywhere in the world, including U.S. soil, and imprison them for an unspecified
time without due process. This behemoth, 1,600 page charter, allotting $662 billion of taxpayers’ money towards defense funding, contained controversial, vaguely-worded provisions that allow for detention of persons – including Americans here at home – indefinitely by the military without trial or military
tribunals, and contains implications for abuse of presidential powers by significantly broadening the scope of executive authority with a simple pen stroke.
Specifically, sections 1021 and 1022, reminiscent of Draconian laws, authorized
indefinite detention by the armed forces without trial – this, despite the Constitution’s sixth amendment which guarantees right to fair trial for all, and the Posse Comitatus Act which limits governments’ use of military intervention to enforce laws.
Implications of the NDAA, its’ potential consequences, and the subsequent erosion of the diligently-drafted laws meant to preserve and uphold the principles and values our country was founded upon, have all elicited vehement protests in communities across America.
Unfortunately, the protests appear to be falling on deaf ears.
On December 4, 2012, the U.S. Senate unanimously voted to approve
the $631 billion NDAA for fiscal year 2013, except this time with a measure that
appeared to attempt to address concerns regarding the indefinite detention specifically of U.S. Citizens and green card holders. The Feinstein Amendment, proposed by Sen. Dianne Feinstein (D-Calif.), in part read: “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.”
Although it postulated a fair trial only for prisoners that are U.S. citizens or green card holders, the amendment was nonetheless an effort to remedy the Act and make it more Constitutional.
However, a Congressional committee eliminated even that provision, thereby making the Act as unconstitutional as last year’s NDAA. When the government can arrest suspects without a warrant, hold them indefinitely without trial or due process, and deny access to legal counseling or admission of bail, we have in effect disqualified the sanctity of the Bill of Rights.
James Madison, credited as the Father of our Constitution, once famously said, “I believe there are more instances of the abridgment of freedom of the people by gradual and silent encroachments by those in power, than by violent and sudden usurpations.” If he were alive today, he would have born witness to the grim, sobering reality his words foreshadowed.