January 20, 2018

I agree with Bagley: Indefinite Detention of Americans is Wrong.

I’m with Pat Bagley on this one: by signing the National Defense Authorization Act, the President is threatening our liberty and treading on the Constitution.

The appropriate balance between security and freedom in a  liberal republican democracy (and I mean liberal in the classic sense, not in the modern political connotation)  has always tenuous and difficult for lawmakers, and modern technology and globalization have made it even more difficult. Our laws promise access to “due process” and the courts, but at a time when enemies do not wear uniforms, follow a chain of command, can use our own technology and resources to surveil and attack, our multicultural population to hide, and our large and porous borders to infiltrate, the difficulty of providing security has increased dramatically.

Fighting the Nazis and the Japanese in World War II was bloody, but the enemy was clear. Knowing who the enemy is in the twenty-first century is a much more difficult task, especially when the enemy often lives and works among us, looks like us, and acts like us.

That doesn’t mean we quit adhering to the Constitution and the Bill of Rights.

Nevertheless, security should never replace the freedom or the protections of the Bill of Rights without the right of “due process” and appeal to the courts. Our government is designed to split and limit the concentration of power in the hands of one authority–be it the President or the Congress. Tyranny and dictatorship by one man or a legislative body is still tyranny and dictatorship, and our form of government is designed specifically to prevent either the legislature or the President, or even both acting together, to maintain any kind of tyranny over the people. Specifically, the courts were given as a check on the power of the Congress and the President, and appeal to those courts is open to all, at least in theory, to limit the reach of the executive and the legislature.

In recent years, however, many have argued that these limitations have been eroded.  The right of individuals to appeal to courts for relief, and release, through due process, has been modified as legislators and Presidents grasp about to look “strong” on national security. Yes, it’s true that security is among the first and foremost responsibilities of a a government. From Federalist #23, we hear Hamilton argue that, among the most important reasons for union of the states under the constitution was “[t]he common defence [sic] of the members[.]”  But when common defense become common restraint on liberty, the balancing act has perhaps moved too far in the wrong direction. Government is intended to be limited in its ability to provide security, intentionally balanced against the equal importance that our governing philosophy places on liberty, freedom and rights.

Examples where government is overreaching its constitutionally limited grasp?

Commonly cited is the PATRIOT Act, but recent weeks have seen the National Defense Authorization Act for Fiscal Year 2012 (or “NDAA“). The bill is passed every year. This one just happens to have some more controversial provisions included) passed by both houses of Congress and sent on to the President for signature. The NDAA codifies provisions from the Authorization for Use of Military Force Against Terrorists (AUMF) passed in the wake of 9/11 and has raised concerns about the expansion of military powers beyond the theaters of war.

Representative Jerrold Nadler, who voted against the bill, said that it presents a “momentous challenge to one of the founding principles of the United States—that no person may be deprived of his liberty without due process of law.”

Because when the theater of war is on American soil, who can say where the enemy will be found? Or who it will be?

And there’s the rub. Critics have raised concerns that the authorization will allow the military to act against American citizens, without appeal to the courts.

Someone the government says is “a member of, or part of, al-Qaida or an associated force” can be held in military custody “without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” Those hostilities are currently scheduled to end the Wednesday after never. The move would shut down criminal trials for terror suspects.

But far more dramatically, the detention mandate to use indefinite military detention in terrorism cases isn’t limited to foreigners. It’s confusing, because two different sections of the bill seem to contradict each other, but in the judgment of the University of Texas’ Robert Chesney — a nonpartisan authority on military detention — “U.S. citizens are included in the grant of detention authority.”

But those people are bad people, right? They’re terrorists, right?

Right…until they’re not. Until they’re your neighbors, family, friends, or you. Until they aren’t just people far away, but are Americans. Argues Spencer Ackerman at Wired:

So despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end.

War: what is it good for?

Sen. Rand Paul opposes the NDAA because it would limit Americans’ rights of due process.

That this is a bad idea isn’t some radical notion, either, but agreed upon by Democratic and Republican politicians alike. Both  Sen. Al Franken (D-Minn.) and Sen. Rand Paul (R-Ky.) have denounced the law and its effect on our country’s ideals. (Watch Sen. Paul’s comments on YouTube here.)

If the NDAA were all, we might have less to worry about. We can rely on good smart leaders to be careful, right? Plus, it’s a bill, the President can still veto, and the law can still (eventually) be found unconstitutional.

Newt Gingrich, candidate for the Republican nomination for President, wants to arrest judges who make rulings he does not like and force them to testify before Congress.

But what if our elected leaders aren’t so trustworthy? Or what if they are just human? Recently, we’ve seen a growing list of leaders who question or violate the internal safeguards of the constitution against the overreach of government in the national security arena.

  • On September 30, 2011, President Obama ordered the killing–by way of cruise missile–of Anwar al-Awlaki, an American born Muslim (from New Mexico) who had become a leading preacher for an Al Qaeda affiliate in Yemen.
  • Newt Gingrich, a leading candidate for the Republican Presidential nomination, argued that judges should be brought before Congress by US Marshals  to justify their decisions. Not only does that allow the Congress to intimidate courts with decisions it does not like, but it puts the rule of law in an inferior place to the rule of men.

That’s just crazy talk. We believe in the rule of law, not men.  When the President or Congress can enforce their will on the point of a gun without any restraint, when the military has unchecked authority to arrest and detain Americans and the people have no recourse to the courts, we are looking at a precarious and dangerous change in the balance between liberty and security.

And that doesn’t even start on SOPA and the limit it will be to the ability of private citizens to find and share information in a day when the US governments intelligence community employs a veritable private army in surveillance of most of the planet.

Security and freedom are both important responsibilities of the government, but overreach in the first can limit and endanger the second. Take a moment and reach out to your elected representatives and let them know your concerns. At the end of the day, an elected representative’s greatest motivation is reelection. Apply that pressure, and push the pendulum back towards balance.

[Bill Text][Salt Lake Tribune][Consource][Wired][Washington Post][Washington Post’s “Top Secret America” report][Raw Story][Washington Monthly][Justia]

About Daniel Burton

Daniel Burton lives in Salt Lake County, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas. He is active on social media, Republican politics, and has been named to PoliticIt’s list of the “Top-50 Utah Political Opinion Leaders” on Twitter. You can reach him directly at dan.burton@gmail.com

  • Didn’t the US round up Japenese-Americans into camps during WWII? About 110,000 of them according to Wikipedia: 


    I’d say we’ve almost always made huge mistakes when it’s come to identifying who the enemy is.

    • Fair point, but also I think it’s more a parallel point…

    • And another thing: see, that’s the problem with giving an example, which I did. There’s always an exception. Please note that I did qualify it elsewhere by discussing an enemy that wears a uniform, follows a chain of command, etc. One distinct difference between the boogeyman of our day and that of our grandfathers is that the enemy wore a uniform…usually.

  • Anonymous

    The bipartisan opposition to NDAA and SOPA being in the minority is a good demonstration of how dysfunctional the two parties are.

    • I don’t know if I’d say it’s just the “two parties.” They’re hardly monolithic. More, I’d attribute it to the nature of politics today, and how divisive it has become as the stakes have become higher…but, perhaps, that’s deeper discussion about the kind and form of government we need in this day and age.

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