The blogosphere has been humming the last couple of weeks with condemnation of the 2012 National Defense Authorization Act. This bill, which funds U.S. military forces for the coming year, has a neat little provision tucked away in Sec. 1031. It permits anyone the government claims is “a member of, or part of, al-Qaida or an associated force” to be held in military custody “without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” Including, according to numerous blog posts, U.S. citizens residing in the United States.
The bill has passed both the Senate and House, and is now before a congressional conference committee to iron out differences between the House and Senate versions.
Because the bill, after all, funds the almighty military, there’s close to a 0% chance that it won’t show up on President Obama’s desk in the next few days or weeks. And, despite Obama’s threats to veto the bill, he won’t. More importantly, even if he did veto the bill, it wouldn’t change anything. The president already has or has assumed most if not all of the powers this bill provides. Perhaps that’s why leaders of both chambers have agreed to insert language to the effect that, “Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”
“Existing law or authorities” leaves a lot of room for abuse. For instance, President Obama claims the authority to assassinate U.S. citizens without a trial, and has done so on at least one occasion. In September, he authorized the assassination of Anwar al-Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections. A U.S. drone armed with a missile subsequently killed Awlaki in Yemen.
The military also has authority under existing law to lock up U.S. citizens indefinitely, without trial or any due process whatsoever. That’s a consequence of the Military Commissions Act, enacted in 2006, which allows the president to throw anyone in a military prison, including U.S. citizens, without access to any court. With this authority, the law repeals, or attempts to repeal, the constitutional principle of habeas corpus. If you’re classified as an “enemy combatant” under this act, there’s no requirement that a trial of any kind will ever occur. You can be held indefinitely at Guantanamo Bay or another military facility, without ever being accused of a crime.
The blogosphere seems to believe that this bill would make the entire United States a “battlefield.” Well, the United States already is a battlefield, in law if not in reality. In 2006, Congress authorized the president to deploy troops within the United States when, in the president’s judgment, the authorities of the state are incapable of maintaining public order. This may occur without the consent of state authorities. Two years later, the U.S. Army announced the first deployment of a combat brigade within U.S. borders since the end of the Civil War. It functions as an “on-call federal response force for natural or man-made emergencies and disasters, including terrorist attacks” and for “crowd control.”
So…the president can already assassinate U.S. citizens or detain them indefinitely without trial. Obama can also deploy the military anywhere in the United States to maintain public order. He can do so indefinitely, not just until the end of the hostilities authorized by the Authorization for Use of Military Force. In that sense, the authority in the National Defense Authorization Act is actually more limited than that which the president already possesses.
I don’t want to minimize the seriousness of provisions such as those in this bill. The fact that these powers already exist underscore the fact that Obama and for that matter any U.S. president already has the powers of a dictator, including the authority to assassinate U.S. citizens without trial or other legal process. Obama has the good political sense to use these powers only against individuals such as Anwar al-Awlaki. The real question is…
Who’s next?
Copyright © 2011 by Mark Nestmann
Update: President Obama has now signed this bill into law.
