HAROLD PEASE: Controversial law lays waste to much of the Bill of Rights
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The Republican presidential primaries have obscured President Obama'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 600-page-plus, $662 billion law "would require the military to hold suspected terrorists linked to al-Qaida or its affiliates, even those captured on U.S. soil, and detain some 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 law gives no protection from a revolving definition of terrorism to anti-government, perhaps even tea partyers 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 the Fourth, Fifth, Sixth and Eighth amendments.
The writ of habeas corpus, found in Article 1, Section 9, recognized that someday 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 2. 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.
The Fourth Amendment 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 authorities 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.
The Fifth Amendment 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 process of military arrest and extradition to Guantanamo Bay. 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 only holds when the enemy has brought war to our soil.
The new law destroys the Sixth Amendment. 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 the Eighth Amendment for those the president and his military defined 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 and Rick Santorum are the only presidential candidates from either party to speak out against it, and Mitt Romney came out in support in last week's debate in South Carolina.
Harold Pease, Ph.D., has taught history and political science for more than 25 years at Taft College. Find him at www.LibertyUnderFire.org.
