Can The Constitution Survive Obama’s Reelection?
THE NATIONAL DEFENSE AUTHORIZATION ACT FURTHER SOURS THE SWEET LAND OF LIBERTY
by Nat Hentoff
When the Tea Partiers broke into the national consciousness, with copies of the Constitution in their pockets as they rallied, I was too quickly impressed. I titled one of my syndicated columns “The New American Revolution.” But in the months since President Barack Obama signed a law passed by a bipartisan Congress that smashes key parts of the Bill of Rights, the Tea Partiers have not risen to defend those most basic personal liberties. Nor have Republicans, except for a few, been publicly criticizing the National Defense Authorization Act (NDAA). The Democrats, of course, are nearly unanimous in support of their hollow leader.
On that fateful day—December 31, 2011— ACLU Executive Director Anthony Romero declared that Obama “will forever be known as the President who signed indefinite detention, without charge or trial, into law. The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future Presidents to militarily detain people captured far from any battlefield.” This includes American citizens caged (a more accurate term than detained ) right here in this country.
In his signing statement, Obama tried to pretend that by interpreting the law in his own regal way, American citizens won’t be subject to detention by the military. He’s the boss!
But, Mr. President, even you cannot “interpret” what is plainly in the NDAA. Enter former federal judges Abner Mikva, William Sessions and John Gibbons, who are cited in an Antiwar.com article by Carl Mirra.They warn that the law “codifies methods such as indefinite detention without charge and mandatory military detention and make[s] them applicable to virtually anyone…including U.S. citizens.”
And dig this from the same story: Senator Lindsey Graham (R-South Carolina) “is one of the few supporters of the NDAA to plainly admit that ‘the statement of authority to detain does apply to American citizens, and it designates the world as the battlefield, including the homeland.’” Whose homeland?
That American citizens can and will be subject to military imprisonment subverts the Fifth Amendment’s guarantee that “no person shall be compelled in any criminal case to be… deprived of life, liberty or property, without due process of law.” Yet Senator Carl Levin (D-Michigan) maintains that a law existing before Obama signed the NDAA has been held by the U.S. Supreme Court as having no bar “to indefinite detention of American citizens.” But the High Court also gave habeas corpus rights to such prisoners. And it has yet to rule on a law that radically nullified the Fifth Amendment’s very core of the American system of justice.
There’s more to this astonishing transmogrification of what all Presidents embrace as “our values.” Remember the controversy surrounding previous administrations’ renditions? The CIA would kidnap suspected terrorists, then send them to foreign nations known for torturing their captives during “enhanced interrogations.”
As pointed out by Harvey Wasserman and Bob Fitrakis in the article “2012’s Civil Liberties Apocalypse Has Already Happened,” the NDAA “allows trial by military tribunal, or ‘transfer to the custody or control of the person’s country of origin’ or transfer to ‘any other foreign country or any other foreign entity.’” Any other country? Huh? Somalia? North Korea? Afghanistan?
To what extent will Obama’s signature on this utter contempt for the Bill of Rights affect the President’s reelection campaign? This could depend on how many American voters are familiar with the Bill of Rights. And even if they are, how many have paid attention to the National Defense Authorization Act? Jonathan Turley—one of this country’s most knowledgeable civil liberties lawyers and law professors— notes: “The almost complete failure of the mainstream media to cover this issue is shocking. Many reporters have bought into the spin of the Obama Administration as they did the spin over torture by the Bush Administration.”
Affirming my belief that the Constitution has virtually become wastepaper, Wasserman and Fitrakis have come to this doomsday conclusion: “What most of the nation doesn’t realize is that the end of our basic civil liberties, in place since the December 1791 ratification of the Bill of Rights, has already taken place.”
If Obama manages to occupy the White House for another four years, America will continue turning into a country the Founding Fathers would deplore. Not that I have faith in a Republican coming to the rescue.
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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America; Living the Bill of Rights ; and the forthcoming Is This Still America?
