Summary: Every month seems to bring yet another assault on the Constitution, another chapter in a slow-mo coup de tat. Here we examine the most current. In a larger sense it does not matter if this bill passes or not. Each assault prepares the way for the next. In general they create legal precedents, open new avenues of attack, and — most importantly — accustom Americans to the slow loss of liberty. Those faithful to the Constitution remain on the defensive, fighting the long slow defeat. Only an aroused people can change this situation.
- ACLU summary of the pending bill
- Text of the Bill
- White House objections
- How government power grows and metastasizes
- We are living out the plot of Orwell’s Animal Farm
- For more information
Updates appear in the comments.
(1) ACLU summary of the pending bill
“Senators Demand the Military Lock Up American Citizens in a ‘Battlefield’ They Define as Being Right Outside Your Window” Chris Anders, Washington Office of the ACLU, 23 November 2011 — Opening:
While nearly all Americans head to family and friends to celebrate Thanksgiving, the Senate is gearing up for a vote on Monday or Tuesday that goes to the very heart of who we are as Americans. The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield — even people in the United States itself.
Senators need to hear from you, on whether you think your front yard is part of a “battlefield” and if any president can send the military anywhere in the world to imprison civilians without charge or trial.
The Senate is going to vote on whether Congress will give this president — and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. Even Rep. Ron Paul (R-Texas) raised his concerns about the NDAA detention provisions during last night’s Republican debate. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.
The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday. The bill was drafted in secret by Senators Carl Levin (D-MI) and John McCain (R-AZ) and passed in a closed-door committee meeting, without even a single hearing (source: Washington Post).
(2) Text of the Bill
The National Defense Authorization Act for Fiscal Year 2012 (S.1867), Subtitle D – Detainee Matters, section 1031: Affirmation of the authority of authority of the Armed Forces of the US to detain covered persons pursuant to the authorization for the use of military force:
(a) In General – Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons – A covered person under this section is any person as follows:
- A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
- A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the US or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War – The disposition of a person under the law of war as described in subsection (a) may include the following:
- Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
- Trial under chapter 47A of title 10, US Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
- Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
- Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) Construction – Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) Requirement for Briefings of Congress – The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons’ for purposes of subsection (b)(2).
To further stoke the anger of US citizens (ie, those still giving allegiance to the Constitution — not to the Government, or asleep), see section 1032 – Requirement for military custody.
(3) White House objections
The Obama administration objects to sections 1031 and 1032 for a confused medley of reasons. Most strongly as this gives broad and explicit but limited authority, rather than the vague and every growing grey zone of executive authority (see this official statement, 17 November). They too recognize that this might expand military arrest authority to US citizens on US soil.
(4) How government power grows and metastasizes
Methods that work for the government get used again. All that can stop this process is our fidelity to the Constitution, knowledge of history, and willingness to stand together. Recent history shows us wanting in these things.
The 1964 Tonkin Gulf resolution (see references at Wikipedia) used a poorly understood event to drive passage of vague legislation, used to justify a long and massive war in Vietnam.
The attack on 9-11 used a poorly understood event to drive passage of vague legislation, used to justify a long global war. Congress passed the Authorization for Use of Military Force (Public law 107-40) on 18 September 2011:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Al Qaeda probably does not exist now in as effective foe. We overthrew the government of Afghanistan and replaced it with a puppet regime. Still the war continues against purely national insurgents in Afghanistan, Pakistan, Yemen, Somalia, and Uganda. With no end in sight, despite these wars having only a tenuous (probably specious) connection with 9-11.
(5) We are living out the plot of Orwell’s Animal Farm
The rules seem clear, boldly written on the side of the barn. Slowly they change. Each revision seems natural, and the previous meaning quickly forgotten. The end result is a farm far different than the vision, but accepted by the not-so-bright animals.
From Chapter Ten of Animal Farm:
Somehow it seemed as though the farm had grown richer without making the animals themselves any richer-except, of course, for the pigs and the dogs.
… And yet the animals never gave up hope. More, they never lost, even for an instant, their sense of honour and privilege in being members of Animal Farm. They were still the only farm in the whole county — in all England! — owned and operated by animals. Not one of them, not even the youngest, not even the newcomers who had been brought from farms 10 or 20 miles away, ever ceased to marvel at that.
And when they heard the gun booming and saw the green flag fluttering at the masthead, their hearts swelled with imperishable pride, and the talk turned always towards the old heroic days, the expulsion of Jones, the writing of the Seven Commandments, the great battles in which the human invaders had been defeated. None of the old dreams had been abandoned. … No creature called any other creature “Master.” All animals were equal.
… Benjamin felt a nose nuzzling at his shoulder. He looked round. It was Clover. Her old eyes looked dimmer than ever. Without saying anything, she tugged gently at his mane and led him round to the end of the big barn, where the Seven Commandments were written. For a minute or two they stood gazing at the tatted wall with its white lettering. “My sight is failing,” she said finally. “Even when I was young I could not have read what was written there. But it appears to me that that wall looks different. Are the Seven Commandments the same as they used to be, Benjamin?”
For once Benjamin consented to break his rule, and he read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran:
All Animals Are Equal
But Some Animals Are More Equal Than Others