By John W. Whitehead
“All the armies of Europe, Asia and Africa combined… could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years. At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.” – Abraham Lincoln, 1838
America’s so-called war on terror, which it has relentlessly pursued for the past ten years, has forever altered the political and legal landscape of our country. It has chipped away at our freedoms and is unraveling our Constitution. Even now, with Osama bin Laden having been killed and Al-Qaeda dismantled by a series of high-profile assassinations, the war hawks continue to rattle their sabers. Yet while more and more Americans join the call for a de-escalation of military actions abroad, those clamoring for war have turned their focus inwards. As Senator Lindsay Graham recently remarked as an explanation for his support of legislation allowing for the indefinite detention of Americans, “Is the homeland the battlefield? You better believe it is the battlefield.”
America has indeed become the new battleground in the war on terror. In light of this, you can rest assured that there will be no restoration of the civil liberties jeopardized by the USA Patriot Act and other equally subversive legislation. Instead, those in power will continue to sanction ongoing violations of our rights, relying on bureaucratic legalese to sidestep any concerns that might be raised. The National Defense Authorization Act of 2012, which was passed by the Senate with a vote of 93 – 7, is a perfect example of this. Contained within this massive defense bill is a provision crafted by Democrat Charles Levin and Republican John McCain which mandates that anyone suspected of terrorism against the United States be held in military custody indefinitely. This provision extends to American citizens on American territory. The bill also renews the Authorization to Use Military Force (AUMF) which was passed in 2001, shortly after the 9/11 attacks. In addition to renewing the AUMF, it extends its provisions to include military action against those who “substantially support” Al Qaeda, the Taliban, or “associated forces.” And to cap it off, the bill enhances restrictions against transferring detainees being held in Guantanamo Bay to the continental United States.
Taken collectively, these provisions re-orient our legal landscape in such a way as to ensure that martial law, rather than the rule of law—our U.S. Constitution, becomes the map by which we navigate life in the United States. In short, this defense bill not only decimates the due process of law and habeas corpus for anyone perceived to be an enemy of the United States, but it radically expands the definition of who may be considered the legitimate target of military action. If signed into law by President Obama, this bill will not only ensure that we remain in a perpetual state of war—with this being a war against the American people—but it will also institute de facto martial law in the United States. Although the 1878 Posse Comitatus Act placed strong restrictions on how and when the U.S. military may be used on American soil, the language of this bill supersedes Posse Comitatus, empowering the president to unilaterally impose martial law at any time of his choosing. This legislation signals the end of the rule of law in America.
Even the slight glimmer of hope that this march towards martial law might be thwarted was quickly extinguished by a Congress that broke its partisan gridlock long enough to overwhelmingly defeat efforts by Senators Mark Udall and Diane Feinstein to lessen the law’s damage. Udall’s proposal to strike the provision allowing for those suspected of terrorism to be held indefinitely was struck down 61-37, while Feinstein’s stipulation that the provision apply only to non-Americans captured “abroad” was shot down 55-45. It’s particularly telling that two such seemingly disparate groups of politicians—ostensibly liberal Democrats concerned with the rule of law and ostensibly conservative Republicans concerned with shrinking government—who spent two months disagreeing about whether or not to raise America’s debt ceiling, an ultimately arbitrary and unimportant decision, took less than a week to find consensus on upending the rule of law and radically extending the government’s power.
The fact that our elected representatives—public servants entrusted with acting in our best interests—are putting forth legislation which endangers the right to due process, a founding principle of this nation, is alarming, but perhaps not all that surprising. We have witnessed the pieces being put into place for years now with little outcry from the American people. The perpetual war on terror has provided those in power with the perfect means by which to ratchet up the fear, all the while slowly eroding our freedoms.
I have yet to see any credible rationale for the presence of these martial law provisions in the defense bill. After all, existing laws and government procedures already address all contingencies for handling any actual enemies of the United States. Even the courts have helped to reinforce these ongoing breaches, ruling that it’s a prerogative of the president, not the judiciary, to determine how enemies of the United States will be treated in custody and what type of trial they will receive, if any. Moreover, we have not seen a terrorist attack on American soil since 9/11. Yet with America pulling out of Iraq at the end of the year, and slowly ratcheting down its commitment to Afghanistan, the military industrial complex that feeds off of war is increasingly making its presence felt on American soil.
In fact, Congress is only too willing to sell us to the highest bidder, and they are doing it using the same rhetoric they trotted out to justify past debacles such as the invasion of Iraq, the use of waterboarding against detainees at Guantanamo Bay, the torturing of prisoners at Abu Ghraib, the installation of cancer-causing body scanners in American airports, and the authorization of government agencies spying on Americans.
Is there any hope of thwarting this legislation? In light of the fact that the defense bill, which has passed the Senate, must still be reconciled with the House of Representatives’ version, it is possible that the offending provisions could be deleted. The Obama administration has also suggested that the president might veto the bill in its entirety. Yet Obama’s veto threat doesn’t actually stem from a concern for the rule of law so much as it has to do with his attempt to amass greater presidential powers.
The situation presents us with something of a Catch-22. If the bill is signed into law as it currently exists, anyone (including Americans) in any part of the world (including the United States) who is “suspected” of terrorism may be detained indefinitely and without trial by the United States military. If the bill is altered so as to remove these provisions, this will still probably occur, as the executive branch has, in the years since 9/11, carved out broad, overreaching, and unconstitutional powers for itself when it comes to pursuing military and police actions against perceived enemies. A case in point is the government-sanctioned assassination of U.S. citizen Anwar al-Awlaki, buttressed by the fact that two of Obama’s top lawyers have publicly stated that any U.S. citizen allied with al-Qaida is a legitimate military target.
Thus, while the passage of this defense bill would be the final nail in the coffin for the rule of law in America, for all intents and purposes, the rule of law is already on life support. Of all of the egregious actions of the United States government in the past decade, this may be the most outrageous. That our lawmakers, sworn to uphold the Constitution, would even consider voting on a provision that completely eviscerates the rule of law is appalling. Unfortunately, this is the state of our government, a government that has been allowed to run wild since 9/11.
As we ratchet down the wars abroad, we must call upon our leaders to shore up the rule of law and civil liberties at home. There is absolutely no excuse for the continued abuse of power that we as a nation have endured for so long.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at www.amazon.com. He can be contacted at firstname.lastname@example.org. Information about The Rutherford Institute is available at www.rutherford.org
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