The blogosphere has been ratcheting up the outrage factor all weekend to the curiously sedate response from the mainstream media over last week's vote on the National Defense Authorization Act and the disturbing provisions within that destroy the basic civil liberties upon which this country was founded.
The NDAA contains a number of highly problematic detention provisions that undermine the US' traditions, commitment to human rights and security. Those provisions solidify indefinite detention, militarise US criminal justice and counter-terrorism policy, and entrench Guantanamo, making it more difficult to close the prison. The legislation paradoxically goes much further on these issues than anything Congress did during the Bush administration. More than a decade after 9/11, lawmakers appear intent on institutionalising and expanding the "War on Terror", rather than scaling it back.The NDAA, for the first time, legislates indefinite military detention. Under the bill, any person who is "part of" or who "substantially supports" al-Qaeda, the Taliban, or an "associated" group may be imprisoned without being charged with a crime.
Lower courts, to be sure, have construed an existing statute, the 2001 Authorisation for Use of Military Force (AUMF) to provide a similar detention power. But the NDAA for the first time expressly codifies indefinite detention, making this power more difficult to challenge and more easy to wield aggressively.
The NDAA also for the first time mandates the military detention of covered terrorism suspects, defined broadly to include members of al-Qaeda and associated groups who are planning or who have participated in attacks against the United States. Under the NDAA, the military detention of those covered terrorism suspects is no longer merely an option but a requirement. The NDAA thus creates a new and unprecedented default rule of military detention, usurping the authority traditionally vested in civilian law enforcement. It flouts the principles on which the US was founded: that civilian authority must be supreme over the military, and that even those accused of the most serious crimes are entitled to a trial and the other protections of the Bill of Rights.
Much debate has focused on whether the NDAA applies to individuals arrested in the US, including US citizens. (US citizens are excluded from mandatory detention, but not from the NDAA's general military detention provisions). On this point, the NDAA is ambiguous and purports not to alter existing law. The courts, however, have never conclusively determined whether existing law (i.e., the AUMF) allows domestic military detention.
Now this isn't the first time that Congress has passed a law that has stripped civil rights from a segment of the population in the name of national security (internment of the Japanese), but it's disconcerting to find this particular bill not only voted by a large majority (89 Senators--when was the last time you saw that?) but had President Obama walk back his veto threat. Both the inclusion of this segment and the veto threat are all being gamed for political purposes. The very foundation of our country as hostage for the upcoming election. That's sick. There's a segment of Democrats rationalizing this or trying to explain it away as Chris Coons did in the above segment from Up with Chris Hayes, but I think I fall in line with Digby on this:
[I]t's about enshrining the principle --- the codification of irrational reactions made during the fog of war. Our political culture (including the congress the pundits and even the public) is constructing a police state.
Dianne Feinstein--usually a reliable national security vote--has written legislation to nullify the indefinite detention aspect of the bill. It's a good first start and worth your time to call your elected officials to support. This will also go through the court system, of that there is no doubt. But the collateral damage that will be done to necessitate court action is unacceptable.