Military Indefinite Detention of U.S. Citizens Without a Trial Is Unconstitutional

by Sheila Musaji

Today (11-30-2011) is a sad day for freedom.  The United States Senate voted in favor of indefinite military detention without a trial.  The provision that would allow this was part of the National Defense Authorization Act which was supposed to be a Pentagon spending bill.

Sen. Mark Udall (D-CO) led an unsuccessful attempt to pass an amendment to remove the detention and the military custody provisions from the bill.  Sen. Udall requested further study of the issue.  Udall said “These provisions could well represent a threat to our constitutional liberties.  What is not clear is what we do with someone arrested in his home because of suspected terrorist ties. These detainee provisions would authorize that person’s indefinite detention, but it misses a critical point. How do we know that a citizen has committed these crimes unless they are tried and convicted? Do we really want to open the door to domestic military police powers and possibly deny U.S. citizens their due process rights?”

Sen. Diane Feinstein (D-CA) said “The U.S. government should not have the ability to lock away its citizens for years and perhaps decades without charging them.  We don’t pick up citizens, we don’t incarcerate them for 10 or 15 or 20 years until hostilities end - and no one knows when they will end - without giving them due process of law.” 

The ACLU had a petition to Senators urging them to vote no to indefinite military detention (which would apply even to U.S. citizens on U.S. soil).

According to Alternet Senate opponents to the military detention language said on the Senate floor that the Armed Services Committee included the language without holding a hearing or asking for input from committees that oversee the FBI and other agencies that would be ordered to work with the military.  They also said that those agencies do not want the additional military powers granted because it would vastly complicate the way the federal government fights terrorism domestically. They cited statements by FBI director Robert Mueller, Director of National Intelligence James Clapper, Secretary of Defense Leon Panetta, and opposition by others, including numerous retired generals and admirals, in addition to the ACLU, the American Bar Association, the American Legion, and International Red Cross.

President Obama has said that he would veto the bill if it was passed with this provision still included.

Nevertheless, the Senate amendment to remove those sections lost today in a 61-to-37 vote.  Shame on the Republicans and the Democrats who care so little for the civil rights of Americans.

According to The Hill Blog Sens. Levin, McCain think there is a misunderstanding about what this bill would do and objected to the White House threat to veto. 

The battle is not over.  The bill will now go to the House, and then to a conference committee, and then back to each chamber before being sent to the White House for the president’s signature.

WHAT YOU CAN DO  NOTE:  This is now “what you could have done” according to the 12/15 update

Roots Action has a very easy to use form for you to use to send a letter to the President encouraging him to keep his promise and veto this bill.  Roots Action explains the importance of citizen involvement as follows:

A few dangerous sections in the new “Defense” Authorization Act give presidents the right to launch wars and to indefinitely imprison U.S. citizens and others without charge. A Senate amendment to remove those sections lost, 61-to-37.

But your support for that amendment helped win the votes of those 37 Senators, enough to sustain the veto President Obama has promised.  We need your voice now more than ever. Tell the President to veto the bill as soon as it reaches his desk. Doing so will set a valuable precedent. Bills that dump over $600 billion into wars and weaponry should always be vetoed and rejected. We should be investing in economic conversion to civilian industries that provide more jobs without all the killing.

You can use the wording they have developed, or add your own comments.  Here is how the letter reads

Dear Mr. President, I urge you to veto the National Defense Authorization Act.  While you seem to believe it limits your powers, my concern is that it gives unconstitutional powers to presidents, including the power to imprison people without charge or trial.  You should use your Constitutional power to veto this dangerous bill.

And for those of you who are as angry as I am with both the Democrats and Republicans who are supposed to represent “we the people” Care 2 has a Petition to IMPEACH ALL Senators who Voted for “U.S. is a Battlefield” and to detain U.S. Citizens without trial.  You can SIGN HERE.

The Muslim Peace Coalition USA has a complete list of how your Senators voted. 

This is an issue of concern to all Americans.  Contact national religious and interfaith organizations and ask them to get involved.  NOTE:  This section will be updated as information comes in about efforts to overturn this.

UPDATE 12/15/2011

None of those efforts to overturn this or to encourage the President to keep his word and veto this bill as he promised had any effect.

It is difficult to believe, but President Obama has now said that he will not veto the National Defense Authorization Act (NDAA) which would allow the indefinite detention of Americans suspected of terrorism.  Will not veto means that he will sign this into law.

Section 1021 (c) still remains in the NDAA and states: “The disposition of a person under the law of war as described in subsection (a) may include the following: (1) Detention under the law of war without trial until the end of hostilities authorized by the Authorization to Use Military Force.”

Michael Allen reports that Sen. Rand Paul (R-KY) warned the provisions “put every American at risk” of being sent to Guantanamo Bay. Sen. Mark Kirk (R-IL) said it violated the Constitution because U.S. citizens could be apprehended on U.S. soil and held without a trial.  FBI Director Robert Mueller said the provisions would disrupt, rather than strengthen, efforts to fight terrorism in the U.S.

And, now the NDAA has also passed in the Senate by a vote of 283 to 136.  This really does seem like the end of due process, and the end of habeas corpus, and the end of the U.S. as we knew it.  This happened exactly 220 years to the day that the Bill of Rights was ratified.  As if all of ths isn’t bad enough, this same bill also includes a provision that will allow for the reinstatement of “enhanced interrogation techniques,”

This coming only a week after the news of a push to outfit FEMA and U.S. Army camps around the United States which could be used as detention camps should give every U.S. citizen cause for concern. 

John W. Whitehead, a Constitutional Attorney wrote about this alarming development in an article America the Battlefield: The End of the Rule of Law.  Read the whole article, but here are a few passages

Taken collectively, these provisions re-orient our legal landscape in such a way as to ensure that martial law, rather than the rule of law—our U.S. Constitution, becomes the map by which we navigate life in the United States. In short, this defense bill not only decimates the due process of law and habeas corpus for anyone perceived to be an enemy of the United States, but it radically expands the definition of who may be considered the legitimate target of military action. If signed into law by President Obama, this bill will not only ensure that we remain in a perpetual state of war—with this being a war against the American people—but it will also institute de facto martial law in the United States. Although the 1878 Posse Comitatus Act placed strong restrictions on how and when the U.S. military may be used on American soil, the language of this bill supersedes Posse Comitatus, empowering the president to unilaterally impose martial law at any time of his choosing. This legislation signals the end of the rule of law in America.

...  The fact that our elected representatives—public servants entrusted with acting in our best interests—are putting forth legislation which endangers the right to due process, a founding principle of this nation, is alarming, but perhaps not all that surprising. We have witnessed the pieces being put into place for years now with little outcry from the American people.  The perpetual war on terror has provided those in power with the perfect means by which to ratchet up the fear, all the while slowly eroding our freedoms.

I have yet to see any credible rationale for the presence of these martial law provisions in the defense bill. After all, existing laws and government procedures already address all contingencies for handling any actual enemies of the United States. Even the courts have helped to reinforce these ongoing breaches, ruling that it’s a prerogative of the president, not the judiciary, to determine how enemies of the United States will be treated in custody and what type of trial they will receive, if any. Moreover, we have not seen a terrorist attack on American soil since 9/11. Yet with America pulling out of Iraq at the end of the year, and slowly ratcheting down its commitment to Afghanistan, the military industrial complex that feeds off of war is increasingly making its presence felt on American soil.

I no longer believe that appealing to President Obama will have any effect. I am truly ashamed that I ever voted for him Here is how your elected representatives voted.  We need to vote all but 13 of these Senators out of office.  You should also contact your representatives and let them know what you think about their vote. 

You can contact your Congressperson here:  http://www.contactingthecongress.org 
You can contact your Senator here: http://www.senate.gov/general/contact_information/senators_cfm.cfm?OrderBy=state&Sort=ASC
You can email the President here:  http://www.whitehouse.gov/contact/submit-questions-and-comments

UPDATE 1/5/2012

Last week President Obama signed this into law.  He did say that he had “serious reservations” about some of the law’s provisions and declared, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He added that he would interpret the law “in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”

Since he won’t be President forever, this is not comforting.  It is also not comforting when he had also previously said that he would veto this when it came to his desk. 

Ray McGovern has written a “must read” comprehensive and impassioned article about this - A Betrayal of the Founders which he opens with President Barack Obama desecrated the Constitution that he and I swore to defend when he signed the National Defense Authorization Act of 2012, which includes language violating the Bill of Rights and other constitutionally protected liberties.

——————————————————————-

Here is the text of an article I wrote some time ago on the loss of our habeas corpus rights.  This latest development is part of this same insidious process of eroding the rights enshrined in the Constitution of the United States:

Habeas Corpus, one of the foundations of all our rights as citizens of the United States has been for all practical purposes suspended by our government.  What is startling is how few Americans are speaking out against this.  Perhaps that is because our educational system is so poor that most students graduating from high school don’t even have a firm grasp of our Constitution and the principles upon which it is based.  And, those who accept this as something the government “needs to do” to protect us from the threat of “terrorism” should have taken Ben Franklin’s warning to heart:

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Habeas Corpus is to be found in article 1, section 9 of the U.S. Constitution - “habeas corpus n. Law A writ issued to bring a party before a court to prevent unlawful restraint. [

The basic premise behind habeas corpus is that you cannot be held against your will without just cause. To put it another way, you cannot be jailed if there are no charges against you. If you are being held, and you demand it, the courts must issue a writ of habeas corpus, which forces those holding you to answer as to why. If there is no good or compelling reason, the court must set you free. It is important to note that of all the civil liberties we take for granted today as a part of the Bill of Rights, the importance of habeas corpus is illustrated by the fact that it was the sole liberty thought important enough to be included in the original text of the Constitution."

from U.S. Constitution glossary

“The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. ...  “‘To bereave a man of life,’ says he, ‘or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.’‘’ [Capitals all Hamilton’s from the original.]  Alexander Hamilton in Federalist 84

“...freedom of person under the protection of the habeas corpus; and trial by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation.” - Thomas Jefferson

“The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...The practices of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny.  Alexander Hamilton

Possibly the best statement that has been made in defense of habeas corpus is the following by Keith Olberman.  He sums up the dangers of our current situation beautifully. 

TEXT OF KEITH OLBERMAN’S DISCUSSION OF THE LOSS OF HABEAS CORPUS

Olbermann: And lastly, as promised, a Special Comment tonight on the signing of the Military Commissions Act and the loss of Habeas Corpus.

We have lived as if in a trance. We have lived… as people in fear.

And now—our rights and our freedoms in peril—we slowly awake to learn that we have been afraid… of the wrong thing.

Therefore, tonight, have we truly become, the inheritors of our American legacy. For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering:

And lastly, as promised, a Special Comment tonight on the signing of the Military Commissions Act and the loss of Habeas Corpus.

We have lived as if in a trance.

We have lived… as people in fear.

And now—our rights and our freedoms in peril—we slowly awake to learn that we have been afraid… of the wrong thing.

Therefore, tonight, have we truly become, the inheritors of our American legacy.

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering:

A government more dangerous to our liberty, than is the enemy it claims to protect us from.

We have been here before—and we have been here before led here—by men better and wiser and nobler than George W. Bush.

We have been here when President John Adams insisted that the Alien and Sedition Acts were necessary to save American lives—only to watch him use those Acts to jail newspaper editors.

American newspaper editors, in American jails, for things they wrote, about America.

We have been here, when President Woodrow Wilson insisted that the Espionage Act was necessary to save American lives—only to watch him use that Act to prosecute 2,000 Americans, especially those he disparaged as “Hyphenated Americans,” most of whom were guilty only of advocating peace in a time of war.

American public speakers, in American jails, for things they said, about America.

And we have been here when President Franklin D. Roosevelt insisted that Executive Order 9-0-6-6 was necessary to save American lives—only to watch him use that Order to imprison and pauperize 110-thousand Americans…

While his man-in-charge…

General DeWitt, told Congress: “It makes no difference whether he is an American citizen—he is still a Japanese.”

American citizens, in American camps, for something they neither wrote nor said nor did—but for the choices they or their ancestors had made, about coming to America.

Each of these actions was undertaken for the most vital, the most urgent, the most inescapable of reasons.

And each, was a betrayal of that for which the President who advocated them, claimed to be fighting.

Adams and his party were swept from office, and the Alien and Sedition Acts erased.

Many of the very people Wilson silenced, survived him, and…

...one of them even ran to succeed him, and got 900-thousand votes… though his Presidential campaign was conducted entirely… from his jail cell.

And Roosevelt’s internment of the Japanese was not merely the worst blight on his record, but it would necessitate a formal apology from the government of the United States, to the citizens of the United States, whose lives it ruined.

The most vital… the most urgent… the most inescapable of reasons.

In times of fright, we have been, only human.

We have let Roosevelt’s “fear of fear itself” overtake us.

We have listened to the little voice inside that has said “the wolf is at the door; this will be temporary; this will be precise; this too shall pass.”

We have accepted, that the only way to stop the terrorists, is to let the government become just a little bit like the terrorists.

Just the way we once accepted that the only way to stop the Soviets, was to let the government become just a little bit like the Soviets.

Or substitute… the Japanese.

Or the Germans.

Or the Socialists.

Or the Anarchists.

Or the Immigrants.

Or the British.

Or the Aliens.

The most vital, the most urgent, the most inescapable of reasons.

And, always, always… wrong.

“With the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat?”

Wise words.

And ironic ones, Mr. Bush.

Your own, of course, yesterday, in signing the Military Commissions Act.

You spoke so much more than you know, Sir.

Sadly—of course—the distance of history will recognize that the threat this generation of Americans needed to take seriously… was you.

We have a long and painful history of ignoring the prophecy attributed to Benjamin Franklin that “those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

But even within this history, we have not before codified, the poisoning of Habeas Corpus, that wellspring of protection from which all essential liberties flow.

You, sir, have now befouled that spring.

You, sir, have now given us chaos and called it order.

You, sir, have now imposed subjugation and called it freedom.

For the most vital… the most urgent… the most inescapable of reasons.

And—again, Mr. Bush—all of them, wrong.

We have handed a blank check drawn against our freedom to a man who has said it is unacceptable to compare anything this country has ever done, to anything the terrorists have ever done.

We have handed a blank check drawn against our freedom to a man who has insisted again that “the United States does not torture. It’s against our laws and it’s against our values” and who has said it with a straight face while the pictures from Abu Ghraib Prison and the stories of Waterboarding figuratively fade in and out, around him.

We have handed a blank check drawn against our freedom to a man who may now, if he so decides, declare not merely any non-American citizens “Unlawful Enemy Combatants” and ship them somewhere—anywhere—but may now, if he so decides, declare you an “Unlawful Enemy Combatant” and ship you somewhere - anywhere.

And if you think this, hyperbole or hysteria… ask the newspaper editors when John Adams was President, or the pacifists when Woodrow Wilson was President, or the Japanese at Manzanar when Franklin Roosevelt was President.

And if you somehow think Habeas Corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an “unlawful enemy combatant”—exactly how are you going to convince them to give you a court hearing to prove you are not? Do you think this Attorney General is going to help you?

This President now has his blank check.

He lied to get it.

He lied as he received it.

Is there any reason to even hope, he has not lied about how he intends to use it, nor who he intends to use it against?

“These military commissions will provide a fair trial,” you told us yesterday, Mr. Bush. “In which the accused are presumed innocent, have access to an attorney, and can hear all the evidence against them.”

‘Presumed innocent,’ Mr. Bush?

The very piece of paper you signed as you said that, allows for the detainees to be abused up to the point just before they sustain “serious mental and physical trauma” in the hope of getting them to incriminate themselves, and may no longer even invoke The Geneva Conventions in their own defense.

‘Access to an attorney,’ Mr. Bush?

Lieutenant Commander Charles Swift said on this program, Sir, and to the Supreme Court, that he was only granted access to his detainee defendant, on the promise that the detainee would plead guilty.

‘Hearing all the evidence,’ Mr. Bush?

The Military Commissions act specifically permits the introduction of classified evidence not made available to the defense.

Your words are lies, Sir.

They are lies, that imperil us all.

“One of the terrorists believed to have planned the 9/11 attacks,” ...you told us yesterday… “said he hoped the attacks would be the beginning of the end of America.”

That terrorist, sir, could only hope.

Not his actions, nor the actions of a ceaseless line of terrorists (real or imagined), could measure up to what you have wrought.

Habeas Corpus? Gone.

The Geneva Conventions? Optional.

The Moral Force we shined outwards to the world as an eternal beacon, and inwards at ourselves as an eternal protection? Snuffed out.

These things you have done, Mr. Bush… they would be “the beginning of the end of America.”

And did it even occur to you once sir—somewhere in amidst those eight separate, gruesome, intentional, terroristic invocations of the horrors of 9/11—that with only a little further shift in this world we now know—just a touch more repudiation of all of that for which our patriots died—-

Did it ever occur to you once, that in just 27 months and two days from now when you leave office, some irresponsible future President and a “competent tribunal” of lackeys would be entitled, by the actions of your own hand, to declare the status of “Unlawful Enemy Combatant” for… and convene a Military Commission to try… not John Walker Lindh, but George Walker Bush?

For the most vital, the most urgent, the most inescapable of reasons.

And doubtless, sir, all of them—as always—wrong.

Joe Scarborough is next.

Good night, and good luck.

UPDATE January 2010

Obama to Indefinitely Imprison Detainees Without Charges, By Glenn Greenwald http://www.informationclearinghouse.info/article24480.htm  raises some important issues.  I can’t help but wonder, does this also apply to American citizens?

SEE ALSO:

America the Battlefield: The End of the Rule of Law, John W. Whitehead http://theamericanmuslim.org/tam.php/features/articles/america-the-battlefield-the-end-of-the-rule-of-law/0018891

Battlefield America: U.S. Citizens Face Indefinite Military Detention in Defense Bill Before Senate, Amy Goodman http://www.democracynow.org/seo/2011/11/29/battlefield_america_us_citizens_face_indefinite

Boumediene v. Bush: What the Supreme Court Decision Means, Andy Worthington http://www.alternet.org/rights/88032/what_the_supreme_court’s_habeas_decision_means/

Bush and Habeas Corpus: Gutting the Constitution, John W. Whitehead http://theamericanmuslim.org/tam.php/features/articles/bush_and_habeas_corpus_gutting_the_constitution/

Bush Signs the Reichstag Fire Decree, Larisa Alexandrovna http://www.huffingtonpost.com/larisa-alexandrovna/bush-signs-the-reichstag-_b_32295.html

The Chickens Come Home to Roost - Losing our Civil Rights, Sheila Musaji http://theamericanmuslim.org/tam.php/features/articles/the_chickens_come_home_to_roost/

Civil Liberty and the State: The Writ of Habeas Corpus, Richard M. Ebeling http://www.fff.org/freedom/fd0204c.asp

Death of the great writ of liberty, Jennifer van Bergen http://www.counterpunch.org/bergen07192004.html

Detainees Deserve Court Trials, P. Sabin Willett http://www.washingtonpost.com/wp-dyn/content/article/2005/11/13/AR2005111301061.html

Chris Dodd’s fight to restore habeas corpus http://www.huffingtonpost.com/taylor-marsh/chris-dodds-fight-to-rest_b_64765.html

The End of Habeas Corpus and the Belligerent Despot-in-Chief, Ralph Nader http://www.counterpunch.org/nader10232006.html

The Flaws in the Military Commissions Act, Sen. Russell Feingold http://www.counterpunch.org/feingold09282006.html

Gitmo Law Could Someday Apply to American Citizens, Adam Serwer http://motherjones.com/mojo/2011/11/gitmo-law-could-someday-apply-americans

HABEAS CORPUS THE MOST EXTRAORDINARY WRIT http://habeascorpus.net/hcwrit.html

Habeas Corpus Restoration Act of 2006 http://www.fas.org/irp/congress/2006_cr/s4081.html

Habeas Corpus, R.I.P. (1215 - 2006), Molly Ivins (on the detainee - or torture - bill and habeas corpus) http://www.truthdig.com/report/item/20060927_molly_ivins_habeas_corpus/

Indefinite Military Detention of Citizens on US Soil Still in Pentagon Spending Bill http://www.alternet.org/news/153259/indefinite_military_detention_of_citizens_on_us_soil_still_in_pentagon_spending_bill

Junking habeas corpus, Greg Moses http://www.counterpunch.org/moses10032006.html

Lawyers Fight for Habeas Rights, Frida Berrigan http://www.inthesetimes.com/article/2890/

Military Police State: Why is the Senate so determined to allow the U.S. military to arrest and detain U.S. citizens?  http://www.slate.com/articles/news_and_politics/jurisprudence/2011/11/citizen_detainment_why_is_the_senate_so_determined_to_allow_the_u_s_military_to_arrest_and_detain_americans_.html

Now That You Could be Labeled an Enemy Combatant…, Heather Wokusch http://www.commondreams.org/views06/1004-35.htm

Obama to sign indefinite detention bill into law, Glenn Greenwald http://www.salon.com/2011/12/15/obama_to_sign_indefinite_detention_bill_into_law/

Padilla and the Future of Habeas Corpus, Jacob Hornberger http://www.counterpunch.org/hornberger01032008.html

Republicans Give In To Bush, Betray America, Thom Hartmann http://www.commondreams.org/views06/0925-35.htm

Restoring Habeas Corpus, Geoffrey R. Stone http://www.huffingtonpost.com/geoffrey-r-stone/restoring-habeas-corpus-r_b_42674.html

The Right of Habeas Corpus: A Truly Fundamental Human Right, Isaac M. McPhee http://constitutional-law.suite101.com/article.cfm/the_right_of_habeas_corpus

Senate Votes To Let Military Detain Americans Indefinitely, White House Threatens Veto, Michael McAuliff http://www.huffingtonpost.com/2011/11/29/senate-votes-to-let-military-detain-americans-indefinitely_n_1119473.html

U.S. Senate Votes for Indefinite, Unconstitutional Detention http://www.thenewamerican.com/opinion/959-jack-kenny/9993-us-senate-votes-for-indefinite-unconstitutional-detention

Victory: U.S. Supreme Court Affirms Habeas Corpus Rights For Detainees, The Rutherford Institute http://theamericanmuslim.org/tam.php/features/articles/victory_us_supreme_court_affirms_habeas_corpus_rights_for_detainees/

Why is habeas corpus important?, Josh Clark http://people.howstuffworks.com/habeas-corpus-important.htm/printable

First posted 11/30/2011