Lazenby: Lindsey Graham’s Inquisition
SOUTH CAROLINA’S “REPUBLICAN” SENATOR COMES AFTER OUR LIBERTIES ONCE AGAIN
By Amy Lazenby || On December 31, 2011, President Barack Obama signed the National Defense Authorization Act (NDAA) for Fiscal Year 2012, codifying indefinite military detention without charge or trial into law for the first time in American history.
So, Happy New Year, y’all! The NDAA’s detention provisions would authorize the president – and all future presidents – to order the military to pick up and indefinitely imprison people captured anywhere in the world, even American citizens, far from any battlefield. This would be a good point at which to remind ourselves of Amendments 4, 5, and 6 to the U.S. Constitution here and attempt to reconcile this law with them.
Can’t do it? There’s a reason for that – it can’t be done.
This bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting without even a single public hearing. It covers all manner of national defense issues, and its full text can be found here.
What we need to be concerned with is Section 1021 of the NDAA, which governs the “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF (this acronym refers to the original 2001 Authorization to Use Military Force bill).” The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF and “includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”
According to Glenn Greenwald’s excellent analysis in a piece for Salon.com, published on Friday, Dec. 16, 2011, before the bill was passed and signed into law, “Under the clear language of the 2001 AUMF, the President’s authorization to use force was explicitly confined to those who (a) helped perpetrate the 9/11 attack or (b) harbored the perpetrators. That’s it.
Now look at how much broader the NDAA is with regard to who can be targeted:
Section (1) is basically a re-statement of the 2001 AUMF. But Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.” Those are extremely vague terms subject to wild and obvious levels of abuse.
With regard to those “covered individuals,” this is the power vested in the President by the next section, (c):
That language codifies the power of indefinite detention and expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.”
But does this law really apply to U.S. Citizens? Yes, it does. Section 1022 states that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody:
The only provision from which U.S. citizens are exempted here is the “requirement” of military detention. For foreign nationals accused of being members of Al Qaeda, military detention is mandatory; for U.S. citizens, it is optional. This section does not exempt U.S citizens from the presidential power of military detention: only from the requirement of military detention.
Again, according to Greenwald, Section 1021 does say that “nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” But, the exclusion appears to extend only to U.S. citizens “captured or arrested in the United States” — meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad.
Although President Obama issued a signing statement saying he had “serious reservations” about the NDAA’s detention provisions, the statement only applies to how his administration would use them, and would not affect how the law is interpreted by subsequent administrations. There also seems to be some real confusion about whether the NDAA authorizes military detention of American citizens or anyone else in the United States. Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen captured on U.S. soil in military custody, and many in Congress assert that the NDAA should be used in the same way.
One such member of Congress is South Carolina’s very own Sen. Lindsey Graham. In his support of this bill, he explained that it will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.”
Say what, Senator? Once again, it would be a good idea to refer to the Amendments to the U.S. Constitution, linked to above.
Fortunately, it’s not too late to change things – if our Congress does the right thing. Last week, the NDAA for 2013 passed out of the House Armed Services Committee with no change to Section 1021. Congress could vote on the bill this week – let’s urge them to vote against it as it is currently written. Several states, counties, and cities have written bills and passed resolutions urging Congress to repeal the unconstitutional provisions in the NDAA. These provisions have been widely criticized from the right, left, and the middle. This is not a Democratic or Republican issue. It is an American issue. Please consider urging your representatives in Congress, particularly SC’s most vocal supporter of this violation of our rights, Sen. Lindsey Graham, to repeal these provisions.
Amy Lazenby is a commentator for FITSNews. Follow/ contact her on Twitter @Mrs_Laz.