Thanks to a bipartisan revision of the Bill of Rights, the president of the United States may soon have the authority to arrest you, strip you of your citizenship, send you anywhere in the world, and execute you. Is this an absurd statement, or a fact of law and true possibility?
Despite his reputation as a constitutional scholar, President Barack Obama demonstrates some interesting inconstancy on the matter of civil liberties. As a senator, he voted for the Patriot Act Extension, S. 2167, and the FISA Amendments Act of 2008. As president, he signed the PATRIOT Sunsets Extension Act of 2011, and supports the passage of the FAA Sunsets Extension Act of 2012, S. 3276. He also signed into law the National Defense Authorization Act on December 31, including a clause granting the military new police powers. All this legislation has been publicly criticized for abrogating critical constitutional protections, including free speech, property, privacy and due process.
Section 1021 of the NDAA authorizes “the president to use all necessary and appropriate force” in rounding up suspected terrorists. This includes “detention under the law of war without trial” and “transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.” These decisions are not a matter of public debate, nor is the arrestee given notice, writ of habeas corpus, or trial. Summary execution may be the end of the line for such individuals, such as American-born, radical Muslim cleric Anwar al-Awlaki and his 16 year old son.
“Due process” versus “judicial process” has become a chilling distinction in this brave new world of freely reinterpreted constitutionality.
“‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process,” according to Attorney General Eric Holder while speaking at Northwestern University on March 5. In contrast, he addressed the American Constitution Society in 2008 saying, “Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more, safe.”
Both his and the President’s ideas on constitutionalism seem to have evolved markedly since then. Fortunately, on May 16 U.S. District Judge Katherine Forrest blocked enforcement of Section 1021.
Forrest stated, “At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”
Those seven plaintiffs include Chris Hedges, former New York Times foreign correspondent and Pulitzer Prize winner.
A new challenge to civil liberties now brews in Committee in the House: the Enemy Expatriation Act, H.R. 3166. The bill would amend the Immigration and Nationality Act to add “engaging in, or purposefully and materially supporting, hostilities against the United States” “to the list of acts for which United States nationals would lose their nationality.”
Guantanamo detention and summary execution for high school honors students suddenly becomes a real possibility again, such as for then 17 year old Mohammad Hassan Khalid of Ellicott City, Md. Rather than face trial on charges of raising funds for a terrorist group, a far darker fate would have awaited the teen. Still, the decision as to whom is a terrorist or traitor and what constitutes a hostile act or support may not be a matter for the courts to decide. It may soon be a silent decision handed down with no more public fanfare than a sunset, and with as much accountability.
The Obama administration and its supporters have been curiously silent regarding the issues they previously protested in public places: the Patriot Act, FAA and the NDAA. That such acts contained measures incompatible with a free and lawful society was certain to them. That was when a Republican was in the White House.
In 2006, Obama denounced the Bush administration’s support of Guantanamo detention camps decrying from the Senate floor, “a perfectly innocent individual could be held and could not rebut the government’s case and has no way of proving his innocence.”
Today, Democrats seem willing to ignore any threat to civil liberties so long as it’s administered by their own party.
Obama said in a signing statement to the NDAA, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”
Regardless of Obama’s own stated intentions, any of these security tools ultimately can be turned against any American. Faith in our future governors can only be carried so far. Thomas Jefferson said, “The price of freedom is eternal vigilance.” When a framework for dictatorship has been constructed, the matter of protecting the Constitution and Bill of Rights demands the attention and serious consideration of all Americans.
John F. Kennedy said, “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.”
This suggests vigorous action, rather than apathy and complacency. Now we come to the brink of the president possessing the authority to extra-judicially arrest, expatriate and imprison and/or execute any American Citizen he deems to be a threat. Will Americans speak out to stop that from happening?
Section 1021 has been blocked for the moment, but the Enemy Expatriation Act re-opens the door to chilling possibilities. The bill remains in committee, so it seems natural to wonder: Which president will emerge from the election potentially to wield such terrible power?