One Foot Off the Slippery Slope: NDAA Ruled Unconstitutional

by , May 28, 2012

If the founding fathers were spinning in their graves like centrifuges over recent assaults on the Constitution, their RPMs slowed down a bit last Wednesday when U.S. District Judge Katherine Forrest ruled that Section 1021 in the latest National Defense Authorization Act (NDAA), allowing military detention of American citizens without due process, is unconstitutional.

The lawsuit was brought by veteran journalist Chris Hedges, with attorneys Carl Mayer and Bruce Afran doing the heavy lifting without compensation. None thought they had a chance to win, given the juggernaut of military and police-state abuses that have rolled over us in the decade since 9/11. But as Hedges said after the verdict, “A stunning and monumental victory … every once in a while the gods smile on the damned.”

The defendants, President Obama and Secretary of Defense Leon Panetta, had argued that this new NDAA merely codified what the panicked 2001 Authorization to Use Military Force (AUMF) had spawned over the last decade: indefinite military detention, unwarranted searches and seizures, assassination, torture — only now it all could be employed on American soil, against American citizens, however or whenever the president and Pentagon saw fit.

It might as well be known as the “Enabling Act,” after the one in 1933 granting that mustached corporal extraordinary powers to combat terrorism after the Reichstag fire.

Hedges argued that, as a journalist who spent seven years as a correspondent in the Middle East, he interviewed many unsavory characters, including ones that could be designated our enemies. He noted after the verdict: “The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. … We too could be swept away into a black hole.”

But we’re not out of the woods yet: the administration could appeal the ruling, and it could go all the way to the Supreme Court, which, given the number of gung-ho Bush appointees on board, could be disastrous.

Unfortunately, the House refused to adopt the earlier bipartisan Smith-Amash amendment that would have repealed the indefinite detention provision. Instead, they adopted the Gohmert amendment, stating that the NDAA will not “deny the writ of habeas corpus or deny any constitutional rights for persons detained in the United States under the AUMF who are entitled to such rights.”

This is still ambiguous language; Section 1021 states that the military is not “required” to detain American citizens. It does not forbid it. That is enough wiggle room for this president, or any future president, to strip American citizens of their   rights via some new Orwellian designation and start disappearing enemies — of the state, or the party, or his own personal enemies, into the gulag of detention camps built by Halliburton subsidiary KBR (in 2006, the Department of Homeland Security awarded KBR a $385 million contract to build these camps for a possible influx of illegal immigrants, or to support the “rapid development of new programs,” whatever that means).

Here’s what’s at stake: last week, a database compiled by two university law schools established that, since 1989, over 2,000 convicts had been exonerated for crimes they did not commit. The average term of imprisonment for these innocent victims: 11 years. That’s a lot of wasted life and a lot of mistakes by our judicial system, with all of its constitutional protections.

But now the Pentagon is going to decide some of these criminal cases with no trial and ensure that many innocent people are not caught in the dragnet? And not abused Abu Ghraib–style? How do you prove your innocence from a dungeon? Without providing lawyers or any due process at all, the DOD is going to do a better job than our imperfect judicial systems have done?

Tell it your gullible uncle. This is a dangerous precedent — one more arrow in the quiver of the “unitary executive” principle, which is to say that King George will rule over us once more. Any citizen, Republican, Democrat, or third party, who would support such a monstrosity needs a refresher course in the American Constitution, and if that doesn’t work, a visa to some seedy banana republic where military juntas and torture dens are routine. They have no place in this republic, which as the founding fathers understood, requires eternal vigilance against control freaks and totalitarians. As ever, James Madison said it best: “It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”

Read more by Travis Kelly