Udall continues his fight against unconstitutional detention provisions
Buried deep in the massive National Defense Appropriations Act is a threat to our democracy that should strike fear to the heart of every American, regardless of political philosophy or ideology.
Drafted in secret by extremist conservative Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., the initial draft of this law granted the Department of Defense power to take American citizens suspected of terrorist activities into military custody. At the pleasure of military bureaucrats, citizens suspected of links to terrorists could be held indefinitely without charges or trial.
“America is part of the battlefield” in the worldwide war on terrorism, supporters claim. Apparently it follows that, just as any normal-looking Afghanistan tribesman might be a terrorist, any American citizen who dares dissent, keeps the wrong company or checks out radical-sounding library books could be a suspected terrorist.
After the White House threatened to veto the bill in its original form, the language was reworked to grant more authority to the president and less to the Defense Department.
“As a result of these changes, we have concluded that the language does not challenge or constrain the president’s ability to collect intelligence, incapacitate dangerous terrorists and protect the American people, and the president’s senior advisors will not recommend a veto,” White House press secretary Jay Carney said in a statement.
“The White House has little problem with indefinite military detention,” commented David Dayen on Firedoglake.com. “They just want to be able to dictate when it gets used and on whom.”
According to the ACLU, the bill provides “no exception for American citizens from the authorization to use the military to indefinitely detain people without charges or trial.”
Although the Defense Appropriations Act passed both houses of Congress with bipartisan majorities, many legislators felt pressured to vote for the bill despite reservations
Colorado Sen. Mark Udall explained his reluctant vote for the measure: “The National Defense Authorization Act is critically important for our armed forces and for Colorado, and I support the vast majority of what this bill does.”
However, he said, “I remain extremely troubled by two provisions in the bill ... related to detention without trial of U. S. citizens.”
Udall led the fight in the Senate to remove the detention provisions from the NDAA. Although his efforts failed, Udall did bring the issue to national attention. That attention may yet give him the support he needs to reverse the effects of these unconstitutional provisions.
On Dec. 16, Udall announced that he has joined Senate Intelligence Committee Chairwoman Dianne Feinstein and a bipartisan group of colleagues to introduce the Due Process Guarantee Act of 2012 “to clarify that American citizens apprehended inside the United States cannot be indefinitely detained by the military.”
According to Udall, the Due Process Guarantee Act would provide that “a congressional authorization for the use of military force does not authorize the indefinite detention — without charge or trial — of U.S. citizens.”
The bill also codifies a “clear-statement rule” that requires Congress to expressly approve any detention authority over U.S. citizens and lawful permanent residents.
The protections are limited to those “apprehended in the United States” and exclude citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.
It is imperative that Udall and his colleagues succeed in restoring the right of habeas corpus and its protection against imprisonment without a fair and public trial. Most Coloradans will be surprised — if not dismayed — to discover that their most fundamental right to due process can be stripped away by a radical amendment tucked deep into a must-pass bill to fund the military.
All Coloradans — conservatives, moderates and liberals alike — should unite behind Udall’s efforts to smother this threat to democracy before it can be used against any American citizen or legal resident. American citizens can be traitors to their country, Udall acknowledges, but that does not justify betraying the most fundamental protections of the Bill of Rights to imprison them forever without a public trial or hearing.
If Congress or the courts cannot repair this obvious rend in the fabric of our constitutional protections, it will forever change what it means to be an American citizen.