War on Terror Keeps on Giving

by , December 01, 2011

A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.
- Thomas Jefferson

The United States has entered a period of unparalleled tyranny for the nation, and a shotgun blast of it is hitting us this week. No longer is the state even attempting to hide how it’s trampling the Constitution, and the largest boot print is being left by Senate Bill 1867, the National Defense Authorization Act.

Among a number of hideous provisions, the bill would designate the United States as a “battlefield,” thus granting the president the right to use commander-in-chief powers at home. This includes the right to snatch or arrest any Americans who are suspects and detain them without charge, lawyer, or trial.

Section 1031 of the bill begins: “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.”

The “covered persons” are defined as:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States 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. [Emphasis added.]

In other words, the president can authorize the military detention of anyone who is merely suspected of being involved with a terrorist organization, which are not strictly defined.

Section 1032, “Requirement for Military Custody,” grants that the “Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force in military custody pending disposition under the law of war.”

Who are the persons described in paragraph 2? Again, it is anyone who is determined

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

Now, the section goes on to state that “the requirement to detain a person in military custody under this section does not extend to citizens of the United States” or to a lawful resident alien of the United States. Some have claimed that this exempts American citizens and lawful aliens from military detention, but note that it only exempts them from the requirement of such detention in military custody. In other words, the military may not be required to detain them, but it is allowed to do so.

On the Senate floor, Sen. Lindsey Graham (R-S.C.), one of the bill’s supporters, went back and forth about this, at one point claiming that it does not apply to Americans and then reversing. He claimed, in the same speech, that Americans would be given due process under this bill, then said,

If you are an American citizen and you betray your country, you’re going to be held in military custody and you’re going to be questioned about what you know. You’re not going to be given a lawyer if our national security interests dictate that you not be given a lawyer and go into the criminal justice system. We’re not fighting a crime; we’re fighting a war.

In fact, the bill goes on to state (in Section 1032) that the only people really safe from military detention are those who are already under “ongoing surveillance or intelligence gathering” and would better serve the state by remaining “free” but under its all-seeing eye. It reads: “Procedures providing that the requirement for military custody under subsection (a) (1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.”

But what about the Constitution that Sen. Graham vowed to uphold? It specifically speaks to just this situation.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

In other words, according to the Constitution, betraying your country is punishable in the court system. Even if citizens engage in warfare against the United States, they are to be given the due process outlined in the Bill of Rights. They can only be convicted before an open court on the testimony of multiple witnesses or by their own confession. The Constitution offers no distinction between when fighting a crime and fighting a war when it comes to due process.

The Fifth Amendment still says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; 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 for his defense.

This applies to all criminal cases, which is why Congress is going to such lengths to make distinctions that the Constitution does not make. Congress wants to differentiate between criminal and military cases, but this is a cheap illusion. Sen. Graham argues that war allows for the suspension of due process in the name of “national security,” but the Constitution addresses these exact situations in the treason clause quoted above.

One other disturbing aspect of this bill is that, since it defines America as part of the battlefield in the War on Terror, those detained would be subject to the same treatment our military dishes out to “enemy combatants.” In other words, American citizens and legal aliens who are detained under the provisions of this bill could be subject to the same tortures, er, enhanced interrogation techniques allowed by the president or military commanders.

The War on Terror supposedly justified wars with Iraq and Afghanistan and military actions in Somalia, Pakistan, Yemen, and more. It is being used to issue threats against Iran, Syria, and North Korea. It also brought us the PATRIOT Act, which allows the government to listen to phone conversations, read e-mails, monitor bank and library records, and search property without a duly issued warrant or even the awareness of the suspect.

Now, the War on Terror is about to bring us more tyranny. The state seeks to convince Americans that this is for their own safety and that it is only trying to protect us. But if the government can monitor our private activities without a warrant or our knowledge, assassinate us for being suspected of terrorism, and snatch us off the street and detain us in military custody indefinitely, from whom do we need protecting?

Read more by Dr. Brian Phillips