Sunday, December 4, 2011

The War At Home

If you were wondering, the United States is at war. It is not the war of declared intent and fixed enemies that we have fought over the centuries; it is an amorphous, shape-shifting war, in which the enemy can be anywhere, at any time, doing things we do not see until they raise themselves up into the light. It is the ultimate war of fear, where noncombatants -- read "civilians" -- are the avowed target of the enemy, and military combat is a sideline. It is a war that defies the use of conventional weapons and tactics. It is a war that may never, ever end.

As such, some in the United States have seen fit to codify and enshrine this war in the very fabric of the nation. Places like Guantanamo Bay, legislation like The Patriot Act, and processes like military tribunals are all being given extended value, becoming permanent fixtures in a the American landscape, rather than temporary expedients. This new type of war has given those who have sought an extension of American power an excuse to use the potential for enemy attack in many insidious ways on our nation the leverage to place into law the removal of restrictions on government's ability to infiltrate the life of law-abiding citizens, in the name of "national security."

And now, soon to come before President Obama, is the National Defense Authorization Act for Fiscal Year 2012 (currently known as S.1867, which includes the following:


(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
     (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
     (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- 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 the hostilities authorized by the Authorization for Use of Military Force.
     (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
     (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
     (4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) Authorities- 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.
(f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).
In essence, the President of the United States is being enjoined by Congress to use the power of the United States military on American soil to fight the potential terrorist threat posed by those we are currently at war with. When the wording of such was made public, the howls from civil liberties organizations and citizens led to the bolded section, to affirm that this use of military force did not necessarily extend to American citizens.

Emphasis on necessarily. As the wording shows, rather than stating unequivocally that these provisions shall not apply to the detention in U.S. citizens, the rather weak "shall not be construed" was used instead. In essence, a very convenient loophole was left in place, to allow for the abuse of military power in the cause of fighting terrorism on the home soil. Should such power be abused, it would be easy enough for a person or persons to be detained for indefinite periods, then released under the mea culpa of it being a terrible mistake, and leaving those who were wrongly detained no recourse under law.

This nation was founded under the aegis of liberty and justice for all. Along with The Patriot Act, this addition is placing into law a further erosion of the strength of those principles that we hold most dear. In a war which could seemingly have no end, because we were the ones to declare it and only we will know when that end actually occurs, such laws essentially give the military and the Department of Homeland Security carte blanche to bring about the rendition of anyone, under any pretenses, for anything which can be twisted or construed as aiding the "enemy" and their cause.

The saddest part of this legal peccadillo, is its broad support, now that sub-part (e) has been added as some sort of "protection" for American citizens. The bill should not, cannot, stand as it is; sub-part (e) is but convenient cover for when this authorization is abused, and it will be abused, no question. At every turn, where the forces of national security have been chained behind the legal protections of the Constitution, any weakening of the chains that bound them have led to their breaking free and running rampant, to the detriment of the citizenry. There is no need for the military to be involved in criminal matters on American soil, even if they involve those we might consider "enemies of the State." We have a national apparatus in place, the Department of Homeland Security, which is supposed to deal with domestic terrorism. To allow the military into this arena on our nation's soil, is to bring about an increase in the military's power that was distinctly against what the Founding Fathers had in mind.

The President must veto this bill, and stand his ground on the removal of the execrable extension. We cannot sit idly by and allow Congress to continue to water down individual liberty with impunity, which it seems bent on doing at every turn. Should this be enshrined into law, it will no doubt not be long before a less scrupulous President will use it to go after his or her enemies under the guise of "national security." Such power cannot be handed, unfettered, to the President, and this President should know that. Let us all urge him to do the right thing, and let us make sure we make our displeasure with our legislators know at the voting booth. Such men and women who would so easily sell out liberty for security do not deserve to run our nation.

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