This isn’t tech-talk!
I know, but I couldn’t resist. Normally I would avoid politics in the blog space. But this is an issue which transcends right vs. left, Democrat vs. Republican, and the partisan bullshit we find permeating the media today. American citizens should be afraid. Very afraid. Not for their own sake, as I suspect most Americans are not, in fact, aiding and abetting terrorists. Instead, we should be concerned as a nation with the erosion of our most basic constitutional protections.
A Schutzstaffel for modern America
You are awakened at 2:00 AM by the sound of your door caving under a battering ram, wielded by black-clad government agents. You are subdued, pinned to the floor, placed in restraints, carted off to an undisclosed location and locked up. You are not informed as to the reasons for all this, your not charged with a crime, and you are not afforded access to an attorney. You are not scheduled for trial, but instead are held for months on end.
You may or may not be “interrogated.” Your family, employer, and friends have no idea what has happened to you, or when, if ever, you shall return.
Oh, the drama
Ok, so that was a bit dramatic. The Schutzstaffel, commonly known as the SS in Nazi Germany, represents an extreme example of what can happen when the police powers afforded The State are not constrained by sufficient legal controls. But we may be sliding down a slippery slope in that direction right here in the good ole’ USA with the passage of the National Defense Authorization Act of 2012 . A large number of Senate Republicans, joined by a small number of Democrats recently voted against an amendment to the Act which would have explicitly affirmed that American citizens are constitutionally protected against indefinite detention at the order of the president.
“What we are talking about here is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever”
– US Senator Dianne Feinstein(D-California)
Instead, the bill was passed with much weaker language essentially confirming the current state of affairs, under which the government attempts to claim some murky authority to arrest and detain American Citizens without due process, under the guise of the “war” on terror.
In debate on the issue, Senator Dianne Feinstein(D-California) argued in support of the amendment: “We as a Congress are being asked, for the first time certainly since I have been in this body, to affirmatively authorize that an American citizen can be picked up and held indefinitely without being charged or tried. That is a very big deal, because in 1971 we passed a law that said you cannot do this. This was after the internment of Japanese-American citizens in World War II .What we are talking about here is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever.”
“In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis . . .”
-US Senator Lindsay Graham (R-South Carolina)
Arguing against representative Feinstein, Republican Senator Lindsay Graham (R-South Carolina) contends that “In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis. But we believe, somehow, in 2011, that is no longer fair. That would be wrong. My God, what are we doing in 2011? Do you not think al-Qaeda is trying to recruit people here at home? Is the homeland the battlefield? You better believe it is the battlefield.”
Uh, Ok Senator Graham. During World War II it was also perfectly acceptable to segregate American troops on the basis of race. It was also perfectly acceptable to detain “for the duration of the conflict” American citizens of Japanese extraction simply for being, well, of Japanese extraction. In other words, on the basis of national origin. Notice that in Senator Graham’s argument, he avoids mentioning this particular (and most infamous) implementation of citizen-detention-as-combatant.
I would argue that the US Constitution already provides the protections which Feinstein and other supporters of the amendment to the Defense Authorization Act speak (which does NOT mean that affirming such protection explicitly in the Defense Authorization Act would not be an important step forward).
The Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment specifically describes “The right of the people . . .” It can be taken as an axiom the “the people” in this instance means the citizenry of the nation, as established in the famous preamble to the Constitution itself:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The Fifth Amendment . . .
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . nor be deprived of life, liberty, or property, without due process of law . . . “
There are those who might attempt to argue that the clause which states ” . . . except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger . . .” Note, however, that the operative phrase here is “When in actual service”.
If this is not enough, the Sixth Amendment to the US Constitution creates an even more explicit case against against detention without due process:
. . . As Enhanced by the Sixth Amendment:
“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.”
Note in the opening sentence the statement “All criminal prosecutions”
If the government, acting through the intelligence community and/or law enforcement, is unable to produce intelligence and/or evidence of terrorist activity sufficient to affect criminal prosecution under the laws of the land, then they have failed at their task, and should go back and do the job correctly. To paraphrase a famous quote, better that 100 terrorists go free than a single innocent American be unlawfully detained under these draconian measures.
Who are the Combatants, Anyway?
The US Government seems to think it can erode the rights of the citizen by declaring “war” on intangibles. The “War on Drugs”. The “War on Terror” Etc. Who are the combatants in these “wars?” The Constitution of our great nation provides a mechanism for dealing with citizens who violate the law of the land, even in cases of Treason. Mere suspicion of terrorist collaboration is not sufficient to warrant the suspension of constitutional rights. While the actions of terrorist organizations are reprehensible (and ineffective at achieving the goals of the organization), when we as a nation allow our government to act in a manner contrary to our beliefs and ideals, and in contravention of the idea of the liberty we espouse as a model to the world, the terrorists can claim victory.
The Integrity of Our Nation
“The United States should not grant victory to the terrorist forces of the world by compromising those values we hold most dear. In doing so we damage the credibility of our nation, of our law, and of our leaders in the eyes of the world.”
The United States should not grant victory to the terrorist forces of the world by compromising those values we hold most dear. In doing so we damage the credibility of our nation, of our law, and of our leaders in the eyes of the world. Given the current political circus, and the status of America in the global economy, we don’t need any help with that from our “leaders” in the Senate and Congress.
Ideas and information for this post were drawn from the following sources:
- Ceding Liberty to Terror: Senate Votes Against Due-Process Rights
- Text of the National Defense Authorization Act of 2012
- Congress Is Poised to Let Obama Imprison Anyone He Wants
- US Senate Reference Home Constitution
Excellent analysis on this John. Wasn’t it Ben Franklin that said “Those who are willing to sacrifice liberty for security deserve neither.” As a former Infantry Officer in the U.S. Army, we are sliding very fast down a slippery slope and too many people have NO clue of the United States Constitution and what it really means. It was created to give EVERYONE rights and freedoms and many people seem ok to throw those rights and freedoms down the toilet because they think “the government is going to protect me.” All I can say is WTFU folks. I got on your site as I am also a developer and was reading one of your CodeProject articles. Anyway, great job in your site pertaining to code and good analysis of the United States of America evolving into the United Socialist States of America!