Commentary: Trampling the Bill of Rights in defense's name

The Anchorage Daily NewsDecember 14, 2011 

Without doubt, the United States needs the means to defend itself from terrorists.

Without doubt, the United States should not, in providing for that defense, violate the constitutional principles that define a free people possessed of rights that no government can take away at its discretion.

That's what provisions of the National Defense Authorization Act do.

They give the president authority to order the military to detain U.S. citizens, on U.S. soil, suspected of terrorist or related activities. And that detention can be without end, for the duration of a war that may have no end, without legal representation, formal charges, the right to face accusers or the right to a trial.

This is flat wrong and patently, dangerously un-American.

We imagine the intentions of most who support this legislation are good -- at least those whose intentions aren't purely and cynically political. They want to keep Americans safe. But let's think about this legislation for a moment -- we're in effect giving the president broad powers to detain any U.S. citizen on no more than his word or that of his accusers. We're allowing the military to become part of law enforcement in the United States -- something that by both law and tradition has been allowed in only the most extreme circumstances.

But this same legislation defines the entire world as a battlefield -- including the United States -- and in effect says extraordinary circumstances are now ordinary.

What's stunning is that the Senate voted 93-7 in favor of these provisions, which were crafted in closed-door meetings without public hearings. We'd like to say that Sens. Mark Begich and Lisa Murkowski were principled enough to be among the seven opposed, but regrettably that was not the case.

One response to critics of the legislation is to say that such sweeping powers will rarely be used. And while military detention is required for non-citizens, it's not required for citizens. The president may allow the civil authorities to pursue some cases.

Since when do we pass laws that could land U.S. citizens in prison indefinitely, with no recourse, no charges, no resolution of their cases, on the assurance that it's a power our leaders will rarely use? Do these legislators know nothing of the history of this country?

This is the political season, so few in Congress want to be seen as even remotely "soft" on terror.

Apparently they'd rather be seen as soft on the Constitution.

It's unclear what President Barack Obama will do. He threatened to veto the bill if it required the military to detain U.S. citizens. The bill passed by the Senate doesn't require military detention, but it does allow it, at the president's discretion. The Senate further clouded the issue by passing an amendment saying that the authorization act does not affect current law, leaving the courts to decide if this is an expansion of powers.

The executive branch under both Presidents Bush and Obama have tried to steer clear of the courts. In 2004, the Supreme Court ruled that a U.S. citizen captured in Afghanistan was entitled to "a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker." The government let the prisoner go. In other cases, the military returned prisoners to civilian control rather than face a court test of the proper extent of military detention.

Maybe that's because the government lawyers know that any Supreme Court worthy of the name would step up to defend the fundamental constitutional rights of every American. But this question should never get anywhere close to a courthouse. Without a clear and unambiguous statement that these provisions do not and will not apply to American citizens, this bill should be immediately flushed down the nearest toilet.

The notions of endless war and the battlefield everywhere are Orwellian, not American. Yes, eternal vigilance is necessary, as is the ability to strike hard in defense, anywhere in the world. But we can't protect our rights by surrendering them.

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