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Dr. Harold Pease

The Republican Presidential Primaries have obscured the President’s late December signing of the most damaging law to the Bill of Rights in my lifetime. Known as the National Defense Authorization Act the over 600 page, $662 billion law “would require the military to hold suspected terrorists linked to Al Qaeda or its affiliates, even those captured on U. S. soil, indefinitely” and without trial, on the say so of the military through the President alone. Moreover, even U.S. citizens could be removed to Guantanamo Bay, Cuba against their will and deprived of their constitutional rights. In my commentary on this law in early December (see “New Bill Damages Bill of Rights and Could Target Americans for Military Detention,” LibertyUnderFire.org), I noted that the law gave no protection from a revolving definition of terrorism to anti-government, perhaps even Tea Partiers or Occupy Wall Street folks.

The threat of potential incarceration without recourse to a lawyer, judge and trial is very serious. The military performing police duty, heretofore rendered by civil authorities, is unconscionable in a free society. Our only hope was a promised Presidential veto which did not happen. Therefore, what follows are details on how the new law emasculates the Writ of Habeas Corpus in the U.S. Constitution and Amendments 4, 5, 6 and 8 of the Bill of Rights.

The Writ of Habeas Corpus found in Article I, Section 9 recognized that some day war might exist on our soil and that the accused had rights that might have to be momentarily delayed until recognized civilian authority could reasonably attend to them. It allowed this delay in only two circumstances “when in cases of rebellion or invasion the public safety may require it.” Section 9 is a list of powers specifically denied Congress; nor were they given to the President in Article II. This strongly suggests no federal role outside these two parameters in the delay of justice—certainly no military role. The removal of any civilian role and the carting off of U.S. citizens to a foreign country without benefit of judge or jury obliterates this right.

Amendment 4 deals with searches and seizures and reads in part “no warrants shall issue, but upon probable cause, supported by oath or affirmation…” Warrants give civil authority the power to arrest only when the reason for the search (probable cause) has been reviewed and authorized, normally by an elected judge, who has given an oath to uphold the Constitution. He stands between the plaintiff and the defendant as the protector of Constitutional law. There is no role for the military even with a President’s authorization. Tell this to the young soldiers just following orders. Freedom dies when this amendment dies.

Amendment 5 has several parts that are affected by the new law but space limits my coverage to just a couple. Infamous or serious crimes mandate a grand jury, twelve or more citizens to evaluate the evidence before proceeding, which will not exist in a military arrest and extradition to Guantanamo Bay process. Moreover, one cannot “be deprived of life, liberty, or property, without due process of law.” Due process is the civilian judicial system. The amendment does have a short-term exclusion “when in actual service in time of war or public danger” but the National Defense Authorization Act is a permanent exclusion rather than a temporary one and this brief exclusion should only hold when the enemy has brought war to our soil.

Amendment 6 deals with criminal court procedures where “the accused shall enjoy the right to … a public trial, by an impartial jury of the state and district wherein the crime shall have been committed … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense.” The new law destroys the Sixth Amendment to the Constitution. There will be no “impartial jury,” no “obtaining witnesses in his favor,” no “counsel in his defense,” and Cuba is hardly within “the state and district wherein the crime shall have been committed.”

Finally, the new law will obliterate Amendment 8 for those the President and his military define as terrorists. The protection against cruel and unusual punishment for them ends and torture is justified. Does anyone really think that the military will care about excessive fines or bail either?

Sadly both parties, despite their oath to preserve the Constitution, are responsible for this bill. There was bipartisan support for it. Unbelievably, Ron Paul is the only presidential candidate from either party to speak out against it.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.