By Ginny Sloan, cross-posted from Huffington Post
But what will we say to future generations if the National Defense
Authorization Act of 2012 (NDAA) becomes law? That legislation contains a
provision that authorizes the president to indefinitely imprison,
without a criminal charge or court hearing, any suspected terrorist who
is captured within the United States -- including American citizens.
It is difficult to imagine a greater attack on one of the most basic
of individual freedoms protected by our great Constitution. As Justice
Antonin Scalia wrote in his dissenting opinion in Hamdi v. Rumsfeld
(2004), "The very core of liberty secured by our Anglo-Saxon system of
separated powers has been freedom from indefinite imprisonment at the
will of the Executive."
If members of Congress choose -- for the first time in our nation's
history -- to codify a system of indefinite detention without charge and
authorize such confinement on the basis of suspicion alone, they will
do so with their eyes wide open. The attacks of 9/11 are now more than
ten years old.
Although our troops are still engaged in Afghanistan,
the fog of war has long since lifted. While we have encountered new
threats over the past decade, we have handled those without any
suggestion that the president (or military) was lacking the power
necessary to address them.
On the contrary, our federal law enforcement has proven time and
again that it is capable of playing a vital role in bringing terrorists
to justice. The best-known examples help prove the point: the "shoe
bomber," Richard Reid, and "Times Square bomber," Faisal Shahzad, are
both serving life sentences in maximum-security federal penitentiaries;
Umar Farouk Abdulmutallab, the "underwear bomber," has been found guilty
in federal court and is awaiting sentencing. Overall, more than 400
terrorists have been tried in federal courts, with many of the guilty
ones receiving lengthy prison sentences. Claims that these prisoners
would become martyrs, or that the facilities that held them would become
terrorist targets, have proven unfounded.
Similarly unfounded is the notion that our counterterrorism and
military experts need this authority to keep the homeland safe. Much of
the current national security establishment have expressed opposition to
the over-militarization of counterterrorism activities, including:
Secretary of Defense Leon Panetta; James Clapper, the director of
national intelligence; Robert Mueller III, the director of the FBI;
David Petraeus, the director of the CIA; White House Advisor for
Counterterrorism John Brennan; Lisa Monaco, the assistant attorney
general for national security; and Jeh Johnson, general counsel for the
Department of Defense.
This resistance is not confined to the Obama administration. Senior
national security and law enforcement officials from recent Republican
administrations, including former FBI director William S. Sessions, have
also urged Congress to strike these dangerous provisions. In a letter
sent to Congress last week, Judge Sessions wrote, "[E]nacting the NDAA
without first removing the current detainee provisions could pose a
genuine threat to our national security and would represent a sweeping
and unnecessary departure from our constitutional tradition."
That constitutional tradition compels us to resist efforts by any
branch of government to amass too much authority. We know that our
fundamental freedoms, including the rights to due process and a jury
trial, are safest when government power is divided and subject to checks
and balances. Nevertheless, we recognize that there will always be
those who, in Justice Scalia's words, "think it not only inevitable but
entirely proper that liberty give way to security in times of national
crisis... Whatever the general merits of the view that war silences law
or modulates its voice, that view has no place in the interpretation and
application of a Constitution designed precisely to confront war and,
in a manner that accords with democratic principles, to accommodate it."
We are in year ten of a battle to end the threat of terrorism. The
buildings and property destroyed a decade ago have become the sites of
monuments and memorials. Thanks to the expertise of our nation's
counterterrorism and law enforcement communities -- from federal courts
and prosecutors to first responders at all levels -- we have been spared
additional attacks, despite the best efforts of those who wish to harm
Given this record, and the fact that our elected leaders have had ten
years to develop constitutionally sound anti-terror policies, it is
unconscionable that some of them would choose now to sacrifice the most
basic of all liberties for the illusion of increased safety. If Congress
insists on passing the NDAA with the objectionable detainee provisions
currently in the bill, as it now appears prepared to do, President Obama
must carry out his threat to veto it.
[Related posts: Torture, Indefinite Detention and the American Way; Just Say No to Indefinite Military Detention]
Ginny Sloan is the Founder and President of The Constitution Project, which is a politically independent think tank established to promote and defend constitutional safeguards.