We're talking no court, no lawyer, no judge, no jury. Just the government's accusation. No matter where in the world a victim of this legislation is arrested.
An unlimited term of custody. You're locked up for as long as the government wishes, or until "the end of hostilities," whichever comes first.
Here's the ACLU's take, several days before the Senate approved the bill, from Laura W. Murphy, as quoted on Glenn Greenwald's blog:
If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill.
President Obama has indicated that he will not muster former-President Truman's courage. Instead, Obama has said he will sign this poisoned legislation into law.
It would be easy -- too easy -- to wail, to gnash teeth, to call for the resignation of every cowardly, freedom-squandering legislator in the Senate and House who voted to approve the 2012 National Defense Authorization Act (NDAA) in which this rape of liberty was embedded. But what would be the point? In a matter of days, when Obama signs the measure, grievous damage will be done by our government to guarantees of due process that are embedded in the DNA of our social contract.
What do I mean by "the DNA of our social contract"? I mean the Bill of Rights, specifically the fifth amendment to the Constitution of the United States. To refresh collective memory, emphasis added:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.
What were our elected legislators thinking?
U.S. Senator Al Franken (D-Minnesota) published his thoughts in the Huffington Post on Friday. Sen. Franken titled his post, Why I Voted Against the National Defense Authorization Act:
The bill that passed on Thursday included several problematic provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they're captured in the U.S. [...]
With this defense authorization act, Congress will, for the first time in 60 years, authorize the indefinite detention of U.S. citizens without charge or trial, according to its advocates. This would be the first time that Congress has deviated from President Nixon's Non-Detention Act. And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.
I think that denigrates the very foundations of this country. It denigrates the Bill of Rights. It denigrates what our Founders intended when they created a civilian, non-military justice system for trying and punishing people for crimes committed on U.S. soil. Our Founders were fearful of the military -- and they purposely created a system of checks and balances to ensure we did not become a country under military rule. This bill undermines that core principle, which is why I could not support it.
Makes sense to me.
What about the 93 Senators who voted to pass the legislation? What were they thinking?
I can't even begin to speculate. In any case, the question of the moment has less to do with blame and fury, however justified blame and fury may be, and more to do with correcting this grievous error.
It's time for every U.S. citizen who gives a fig for liberty to call loud and clear for a repeal to the indefinite detention provisions of 2012 NDAA right now. To call today. Whether you believe your Congressperson and/or Senators would support such a repeal or not.
This is not hard to do, because a focal point for correction of this egregious legislation is at hand. Senator Diane Feinstein (D-California) has introduced a bill to repeal the indefinite detention aspect of 2012 NDAA. Yep, she introduced her corrective measure even before the signature President Obama has promised to ink was applied to the offending bill's printed page.
Meet S.2003, the Due Process Guarantee Act of 2011. From a press release from co-sponsoring Senator Mike Lee (R-Utah):
"The government’s most basic responsibility is to protect the civil liberties of its citizens," said Senator Lee. "Our nation has fought wars on American soil and around the world in defense of individual liberty, and we must not sacrifice this most fundamental right in the pursuit of greater security. Without freedom there is no security."
"Americans who commit treason, or plot treasonous acts, should and will be punished for their crimes. But granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation's constitutional values."
Also sponsoring the bill are Senators Leahy, Udall (CO), Kirk, Gillibrand, Paul, Coons, Durbin, Nelson (NE), Shaheen, Franken, Udall (NM), and McCaskill.
As of this morning, the House has not yet introduced a version of this bill; that gives you an opportunity to urge your Congressperson to introduce or co-sponsor such a bill. And then to support it vigorously.
Opencongress.org makes it easy to find your Senators' or Representative's website (where you can send them digitally-delivered messages) as well as FAX and phone numbers (either of which will weigh more heavily than an e-message, so call or FAX if you can).
All we've got to lose, to repurpose the words of former President George W. Bush, are our freedoms.
Thanks to my U.C. Berkeley colleague Aron Roberts, and contributors to a thread he initiated on Facebook, for a well-researched and richly-hyperlinked discussion of the indefinite detention provision in 2012 NDAA. The links in Aron's thread formed the basis of this post. Thanks to Eugène Delacroix for Liberty Leading the People (1830), and to Wikimedia Commons for its image of the iconic painting.