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By Dr. Harold Pease

Civil libertarians and constitutional buffs are angrier with the Federal Government now than at any time since the Bush Patriot Act was pushed onto the American people ten years ago. Buried deep within the over 600 page, $662 billion National Defense Authorization Act is language that “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 Americans could be removed to Guantanamo Bay, Cuba against their will and deprived of their constitutional rights.

The fury has to do with U.S. citizenship. Originally Senators Carl Levin and John McCain, who sponsored the bill, did not exempt U.S. citizens—a serious omission which dumps sizable portions of Amendments 4, 5, 6 and 8 of the Bill of Rights. Senators Rand Paul, Dianne Feinstein and others demanding a citizen exclusion proposed amendments to do so, all of which were rejected. Senator Feinstein noted that her goal “was to ensure the military won’t be roaming our streets looking for suspected terrorists.” The Posse Comitatus Act of 1878, following the Civil War, forbade the U.S. military from performing law enforcement functions on American soil. The American Civil Liberties Union was also blunt. “Since the bill puts military detention authority on steroids and makes it permanent, American citizens and others are at greater risk of being locked away by the military without charge or trial if this bill becomes law.” When asked if it were possible for an American to be shipped to Guantanamo Bay, John McCain, a co-author of the bill, said yes. Senator Lindsey Long was more blunt. “When they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”

Finally, Dianne Feinstein successfully got Senate colleagues to accept a weakened version of the same thing, “nothing in the bill changes current law relating to the detention of U.S. citizens and legal aliens.” Even while getting this clarification Senator Levin was still arguing, “that the June 2004 Supreme Court decision in Hamdi v. Rumsfeld said U.S. citizens can be detained indefinitely.” So, since it was so difficult to get an exclusion for Americans, and the co-authors of the bill, Senators Levin and McCain, say that it does include U.S. citizens as well. Why would a weak exclusion give civil libertarians any comfort? It doesn’t.

Some things are very clear. The terms “terrorists” and “affiliates” are not adequately defined, the President is given way too much power, and it violates the U.S. Constitution upon which everyone voting has sworn to uphold. It is hard to trust the government’s precise definition of terrorist when Vice President Joe Biden, a few weeks ago, referred to Tea Partiers as terrorists and House Speaker Nancy Pelosi, a few months prior to this referred to them as mobsters (a term also implying a threat to society). What guarantee do we have that the “new” enemy does not simply rotate to anyone defined as “anti-government,” citizen or not?

The measure places too much power and trust in the office of the President which has not proved particularly trustworthy in the past with respect to the Constitution and civil liberty. Franklin D. Roosevelt, with the stroke of a pen, detained thousands of Japanese Americans in “relocation camps” in World War II on the basis of race and potential terrorism alone. Jose Padilla, allegedly an affiliate of al Qaeda, a U.S. citizen arrested in Chicago for having plans to detonate a “dirty bomb,” was tortured and confined, without benefit of a lawyer for three years, by then President George W. Bush; all this within the borders of the United States. No actual evidence of a “dirty bomb” was ever produced, nor was Padilla ever charged with a crime. Two other Americans, Donald Vance and Nathan Ertel, had similar torture experiences as did Padilla but with less time in solitary confinement, again without charges. (See details in the December 5 issue of The New American). Ultimately, with no evidence to support their confinement, they were set free.

And if Americans are sent to Guantanamo Bay under this law, how much confidence can we have that if found innocent they would be set free, especially given President Barack Obama’s recent assertion, cited in the above reference, that were military commissions to find them innocent they still “would never be set free from prison.” This is so wrong! Why should we have confidence in any president to not use this power as seemeth him good?

The threat of potential incarceration without recourse to a lawyer, judge and trial is very serious. The military performing police duties here to for rendered by civil authorities is unconscionable in a free society. Ninety-three senators voted for this bill. Only seven understood the Constitution well enough to vote no. Should President Obama sign this bill into law, I will follow with an column on how it emasculates Amendments 4, 5, and 6 of the Bill of Rights. Until then pass this column along to others. It is your liberty at stake.

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.