Legislation passed by the Senate this week and headed for the House – and a possible presidential veto – could allow the US military to detain American citizens indefinitely.
The National Defense Authorization Act covering $662 billion in defense spending for the next fiscal year includes a provision requiring military custody of a terror suspect believed to be a member of Al Qaeda or its affiliates and involved in attacks on the United States.
A last minute amendment allows the president to waive the authority based on national security and to hold a terror suspect in civilian rather than military custody. But the bill would deny US citizens suspected of being terrorists the right to trial, subjecting them to indefinite detention, and civil libertarians say the amendment essentially is meaningless.
“This bill puts military detention authority on steroids and makes it permanent,” Christopher Anders, senior legislative counsel of the American Civil Liberties Union, said in a statement. “If it becomes law, American citizens and others are at real risk of being locked away by the military without charge or trial.”
Libertarians and conservatives wary of big government are speaking out against the bill as well.
"If the president thinks you are a terrorist, let him present charges and evidence to a judge,” Libertarian Party Chair Mark Hinkle said in a statement Friday. “He has no authority to lock you up without any judicial review, just because he and Congress believe he should have unlimited power. That is the kind of power held by tyrants in totalitarian regimes. It has no place in the United States.”
Echoing arguments against federal government power made by his father, presidential candidate Rep. Ron Paul (R) of Texas, Sen. Rand Paul (R) of Kentucky spoke forcefully against the measure: “We are talking about people who are merely suspected of a crime, and we are talking about American citizens. If these provisions pass, we could see American citizens being sent to Guantánamo Bay.”
"We are not a nation that locks up its citizens without charge, prosecution, and conviction,” she said during Senate debate.
"This constant push that everything has to be militarized – I don't think that creates a good country," Feinstein argued. "Because we have values. And due process of law is one of those values. And so I object, I object to holding American citizens without trial. I do not believe that makes us more safe."
Making the country more safe from possible attack is exactly the point, counters Sen. Lindsey Graham (R) of South Carolina, a former military lawyer. What the measure does, Graham said, is “basically say in law for the first time that the homeland is part of the battlefield.”
“It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” Graham said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
The issue is not being debated along party lines in Congress.
Senate Armed Services Committee Chairman Carl Levin (D) of Michigan (liberal on most issues and a friend of the Obama administration) and senior Republican committee member Sen. John McCain of Arizona forcefully argued for the bill.
"Al Qaeda is at war with us," said Sen. Levin. "They brought that war to our shores. This is not just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said, and I am going to read these words again, 'There is no bar to this nation's holding one of its own citizens as an enemy combatant.'"
This coming Monday, a tea party group plans to protest in Sen. McCain’s home state.
“When it comes to personal liberty and violation of every citizen’s Constitutional rights, Republicans are willing to take a stand against one of their own if a major mistake has been made," says protest organizer Jeff Bales, a member of the Pima County, Arizona, Republican Executive Committee.
"'Innocent until proven guilty' is essential to our legal system and American way of life,” says Mr. Bales. “The Senate Armed Services Committee's legislation violates fundamental values. It is unconstitutional and must be defeated. We cannot allow America to go further down the road of becoming a police state.”
Some opponents of the new proposal are raising the Posse Comitatus Act of 1878, which restricts the use of military forces in domestic law enforcement.
The Obama administration “strongly objects” to the military custody provision, the White House said in a statement Friday. “It would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”
But the basis for the veto threat is not so much concern for civil liberties as it is for presidential power in such cases.
"Counterterrorism officials from the Republican and Democratic administrations have said that the language in this bill would jeopardize national security by restricting flexibility in our fight against Al Qaeda," White House press secretary Jay Carney said. “By ignoring these non-partisan recommendations, including the recommendations of the secretary of defense, the director of the FBI, the director of national intelligence, and the attorney general, the Senate has unfortunately engaged in a little political micromanagement at the expense of sensible national security policy.”