The 2012 National Defense Authorization Act, if signed into law, will signal the death knell of our constitutional republic and the formal inception of a legalized police state in the United States. Passed by the House on May 26, 2011 (HR 1540), the Senate version (S. 1867) was passed on Dec. 1, 2011. Now only one man — Barack Obama, a scholar of constitutional law — will make the decision as to whether the Bill of Rights he went to Harvard to study will be superceded by a law that abrogates it.
First, let’s be clear what is at stake. Most critical are Sections 1031 and 1032 of the Act, which authorize detaining U.S. citizens indefinitely without charge or trial if deemed necessary by the president. The bill would allow federal officials to take these steps based on suspicions only, without having to demonstrate to any judicial official that there is solid evidence to justify their actions. No reasonable proof will any longer be required for the government to suspend an American citizen’s constitutional rights. Detentions can follow mere membership, past or present, in “suspect organizations.” Government agents would have unchecked authority to arrest, interrogate, and indefinitely detain law-abiding citizens if accused of potentially posing a threat to “national security.” Further, military personnel anywhere in the world would be authorized to seize U.S. citizens without due process. As Senator Lindsay Graham put it, under this Act the U.S. homeland is considered a “battlefield.”
What is at stake is more than the Constitution itself, as central as that document has been to the American experiment in democracy. What is a stake is nothing short of the basic fundamentals of western jurisprudence. Central to civilized law is the notion that a person cannot be held without a charge and cannot be detained indefinitely without a trial. These principles date back to Greco-Roman times, were developed by English common law beginning in 1215 with the Magna Carta, and were universalized by the Enlightenment in the century before the American Constitution and Bill of Rights were fought for and adopted as the supreme law of the land.
For more than two centuries of constitutional development since then, the United States has been heralded as the light to the world precisely because of the liberties it enshrined in its Declaration of Independence and Constitution as inalienable. It now seems as if the events of 9/11 have been determined to be of such a threatening magnitude that our national leaders feel justified to abrogate in their entirety the very inalienable principles upon which our Republic was founded.
At the heart of this Act is the most fundamental question we must ask ourselves as a free people: is 9/11 worth the Republic? The question screaming at us through this bill is whether the war on terror is a better model around which to shape our destiny than our constitutional liberties. It compels the question of whether we remain an ongoing experiment in democracy, pioneering new frontiers in the name of liberty and justice for all, or have we become a national security state, having financially corrupted and militarized our democracy to such an extent that we define ourselves, as Sparta did, only through the exigencies of war?
Within a week of 9/11, the Use of Military Force Act was approved which authorized the full application of U.S. military power against “terrorism.” A month later, on Oct. 26, 2001, Congress overwhelmingly passed the Patriot Act that began the legislative assault on the Bill of Rights. The First Amendment right to freedom of association was gutted as federal officials were authorized to prosecute citizens for alleged association with “undesirable groups.” The Fourth Amendment right against unreasonable search and seizure was compromised by permitting indefinite detentions of those suspected of “terrorism.” The Fourteenth Amendment right to privacy was obliterated as unchecked surveillance was authorized to access personal records, financial dealings, and medical records of any citizen at any time without any judicial oversight or permission. Evidence obtained extra-judicially could be withheld from defense attorneys.
The Patriot Act also criminalized “domestic terrorism.” It stated that civil conduct can be considered “domestic terrorism” if such actions aim to “influence by intimidation or coercion” or “intimidate or coerce a civilian population.” Put in plain language, this means that actions such as Occupy Wall Street can be designated as “domestic terrorism” by Federal authorities without judicial oversight and dealt with outside the due process of constitutional protections.
Two weeks after passage of the Patriot Act, on Nov. 13, President Bush issued Military Order No. 1 authorizing the executive branch and the military to capture, kidnap, or otherwise arrest non-citizens anywhere in the world if suspected of engaging in terrorist activities. Proof was not required. It stipulated that trials, if held, would be military tribunals, not civil courts, and that evidence obtained by torture was permissible. No right of appeal was afforded to those convicted. Numerous executive orders, findings, and National and Homeland Security Presidential Directives followed, further consolidating the militarization of due process under the law and enabling the executive branch to act without legal constraint after it has defined a person or group as potentially engaging in “terrorist” activity.
A year later, on Nov. 25, 2002, the Homeland Security Act was passed that for the first time integrated all U.S. intelligence agencies, both domestic and foreign, into a single interactive network under the president. The Act gave these intelligence agencies complete freedom to collect any and all data on anyone anywhere in the United States and, working with allies abroad, to access complete information on anyone anywhere in the world, working closely with local police, intelligence agencies, and the corporate sector. This dissolved the distinctions between domestic and foreign spying and made more ambiguous the distinction between domestic and foreign “terrorism.”
The next major step took place on Oct. 17, 2006, when Congress passed the Military Commissions Act that effectively abrogated habeas corpus for domestic and foreign enemies alike, stating, “Any person is punishable who aides, abets, counsels, commands, or procures” material support for alleged terrorist groups. One of the most basic principles of both our democracy and our civilization, that a person cannot be held without being charged, was surrendered, and done so by substantial majorities in both houses. On the same day, the 2007 NDAA was passed, which amended the 1807 Insurrection Act and 1878 Posse Comitatus Act, prohibiting U.S. military personnel from acting upon U.S. citizens within U.S. borders. Not only was anything allowable in the pursuit of “terrorists,” but the military was authorized to conduct operations inside the homeland in their pursuit.
Now comes the 2012 NDAA, which completes the process and thus serves as the coup de grace for a democratically voted metamorphosis from republic to national security state. It puts the final nail in the coffin of the Constitution by designating the entire United States as essentially the same “battlefield” in the war on terror as Iraq or Afghanistan, and authorizes the executive branch and the military to take whatever actions they consider legitimate against any human being anywhere on planet earth, civilian or enemy combatant, and to do so without any judicial oversight or constitutional constraint. If this Act is passed, the Bill of Rights will no longer protect American citizens from their government. The Constitution will no longer be the ultimate law of the land.
The House and Senate versions of the Act must now be reconciled and the Act sent to the president to either sign or veto. With his decision, he will determine the fate of those very liberties which, up to this point, have been integral to and indeed have defined America.