This week marks the ten-year anniversary of opening of the U.S. military prison camp at Guantanamo Bay. Despite President Obama’s January 2009 executive order to close the detention facility within his first year in office, Guantanamo remains in use (with over 170 detainees) long past its purported expiration date. In fact, Congressional restrictions on the transfer or release of Guantanamo detainees, which the President recently signed into law, will ensure that the system of indefinite detention at Guantanamo will continue into the foreseeable future. Meanwhile, not only has the President failed to fulfill his pledge to rein in the constitutional excesses of the previous administration, but the Obama administration has been increasingly explicit about its agenda to further imbued the Executive with the broad discretion to prosecute the “War on Terror” with limited Congressional interference.
Most recently, 0n December 31, 2011, President Obama signed into law the 2012 National Defense Authorization Act, which includes the following provisions:
(1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);
(2) renews the 2001 Authorization to Use Military Force (AUMF) with more expansive language: to allow force (and military detention) against not only those who perpetrated the 9/11 attacks and countries which harbored them, but also anyone who “substantially supports” Al Qaeda, the Taliban or “associated forces” (Sec. 1031); and,
(3) imposes new restrictions on the U.S. Government’s ability to transfer detainees out of Guantanamo (Secs. 1033-35).
These provisions, as the New York Times described them, expressly declare that “the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial [and] contain no exception for American citizens.” The potential use of such powers, by the federal government against its own citizens, on U.S. soil, is anathema to even the most warped idea of civil liberties. This was the very kind of unchecked governmental authority that the framers of the United States Constitution sought to prevent. James Madison, at the Constitutional Convention cautioned that “[a] standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense against foreign danger, have been always the instruments of tyranny at home.”
Those in favor of these provisions, however, ostensibly fail to see the potential for abuse, judging from the hawkish rhetoric displayed during the Senate floor debate. Notably eager to make “the homeland a part of the battlefield,” Senator Lindsay Graham, R – S.C., after what must have been an invocation of the spirit of Joseph McCarthy, declared:
“The enemy is all over the world. Here at home. And when people take up arms against the United States and [are] captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity? They should not be read their Miranda rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined al Qaida and what they were going to do to all of us.”
Notwithstanding the fact that, outside of electoral politics, there remains overwhelming opposition to the bill–as the New York Times reported, “[n]early every top American official with knowledge and experience spoke out against the provisions, including the attorney general, the defense secretary, the chief of the F.B.I., the secretary of state, and the leaders of intelligence agencies”– these provisions, to the extent that they would authorize the indefinite detention of a citizen upon an allegation of treason, without due process, are a flagrant violation of the Constitution. Specifically, Senator Graham, along with the bipartisan majority of Senators who voted in favor of these provisions, appear to either have forgotten or have decided to dispense with Article III, Section 3, which requires that ”No Person shall be convicted of Treason unless on the Testimony of two Witnesses to same overt Act, or on Confession in open Court.” As Justice Scalia elaborated in his dissenting opinion in Hamdi v. Rumsfeld:
“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime . . . . The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
While Justice Scalia and the federal judiciary might soon have the opportunity to rule on the scope of detention authority, the responsibility to weigh the constitutional implication of governmental actions should not be borne by the judicial branch alone. Our elected officials share in this duty–to do more than pay mere lip service to the Constitution, when it might suit one’s electoral needs. Indeed, upon taking office, Senator Graham, like all members of Congress, swore an oath to “support and uphold the Constitution of the United States, against all enemies, foreign and domestic.” Likewise President Obama, less than a week before signing his yet unfulfilled executive order, swore to “preserve, protect, and defend the Constitution of the United States.”
As exemplified by the debate in the Senate, the members of our elected branches of government have abdicated their sworn duty to the Constitution. With few exceptions, the debate over the indefinite detention provisions focused not on how these powers might prove constitutionally problematic, but rather on which part of the national security apparatus should have the broad discretion with which to execute this authority.
How this indefinite detention authority will be applied–and how the Supreme Court will rule on the scope of these powers–remains to be seen. The ease with which this bill was enacted, however, is representative of a potentially more pernicious threat: America’s overwhelmingly disengaged and uninformed citizenry, complacent in its obliviousness. Although we might not, like our elected officials, have to swear an oath to uphold our civic duty, we have just as great a responsibility to protect our own civil liberties under the Constitution, especially when our government fails to do so.