By Attorney Jonathan Emord
December 12, 2011
Senate Bill 1867, the National Defense Authorization Act, drafted in secret by Senators Carl Levin (D-Mich) and John McCain (R-AZ), contains a provision that authorizes the armed forces to arrest and imprison without charge or trial those suspected of involvement in or support of terrorist organizations, including American citizens resident in the United States. Not since the summary detention of Asian Americans during the Second World War on suspicion of potential complicity with the Axis enemies of the United States has a law promised to violate in a more direct and profound manner the rights of the American people.
An amendment offered to eliminate this provision by Senator Rand Paul was defeated. The bill, containing this provision, passed the Senate on December 1 by a vote of 93 to 7. The bill and a comparable defense bill in the House, H.R. 1540, are in a House-Senate conference committee. If the provision survives negotiations between the House and the Senate, it will appear in a final bill headed for the President’s signature.
The history of modern government is rife with examples of the innocent accused. While none of us would favor a state that was less than vigilant in arresting and prosecuting American citizens for whom evidence reveals involvement in terrorist activities, no freedom loving American should accept on the pretext of the war on terror the wholesale and indefinite suspension of all Americans basic rights to Habeas Corpus, to Due Process under the Fifth Amendment, and to notice of the precise charges brought, to a speedy trial on the merits before an impartial judge, to a trial by jury, and to counsel–all guaranteed by the Sixth Amendment.
Under Section 1031 of Senate Bill 1867, if your next door neighbor is merely accused of involvement in or support of some terrorist organization or suspected terrorist organization, military police are free to show up at his door, break it in, place him under arrest, and escort him to a military installation for indefinite incarceration without affording him the right of habeas corpus or a speedy trial on the merits before a jury in the federal judicial system. The power is not unlike that of the Gestapo. The law invites abuse beyond the obvious invasion of protected rights, because it can—like the Alien and Sedition Acts of 1798—be used to eliminate political dissidents of one kind or another.