THE NATIONAL DEFENSE AUTHORIZATION ACT

As noted in my last blog entry (Dec. 9, 2011) I have been following with much consternation the passage of the National Defense Authorization Act by Congress and hoping against hope that the President would veto it. The part of the bill that causes me so much heartburn is the provision that would allow for the indefinite detention, under military custody, of U.S citizens and legal residents, as well as others arrested on American soil, who have been accused of terrorist activities, with no chance of due process. In other words, in these cases, the Writ of Habeas Corpus would be suspended---up to now, a basic constitutional protection.

Right before the New Year, much to my disappointment, President Obama did sign this bill into law. However, I was very interested to read, in the Associated Press newspaper article covering this event, that as a condition of signing the bill, the Obama administration had convinced Congress to drop the military custody requirement for U.S. citizens or lawful U.S. residents. At first I was somewhat relieved to read this, but after listening to and reading articles by various constitutional scholars, I now know that the wording of this provision is tricky, which is too often the case with such murky legislation. Military custody is not required, the bill states---the key words here are “not required”-- but, many scholars think, this wording does not prevent indefinite military custody from still being an option at the discretion of a president, and even though this president promised in a signing statement that his administration would not authorize such detention, it still leaves the door open for future presidents to do so, or even this president, if he changes his mind.
History has shown us that such laws often live on or morph into other forms.In 1798, the U.S. government passed the Alien Enemies and Sedition Acts. Part of these Acts targeted foreign writers and speakers living in the U.S. who were sympathetic to the candidacy of Thomas Jefferson. The Sedition Act was eventually overturned, but the Alien Enemies Act was re-codified in 1918, making it a part of the U.S. War and National Defense Statutes. The AEA allows the President to issue proclamations in which aliens of a “hostile nation”, living within the U.S., can be labeled as alien enemies and may, at the president’s discretion, be “apprehended, restrained, secured and removed.” It was such a proclamation and/or executive order, issued by Franklin Roosevelt at the beginning of World War II, which sent my father and thousands like him----ethnic Germans, Italians and Japanese—--mostly legal residents and some citizens, to internment camps and sent thousands and thousands of Japanese American citizens to relocation camps.
Now, it seems, rather than having learned from our mistakes during the World War II years, we are amplifying those mistakes. Instead of passing laws which would nullify such unconstitutional activity during present and future wars, we are adding to the horror by creating new and even more onerous laws. At least World War II had some parameters—a beginning and an end. The war on terror has no such defining timeline. Someone detained during the so-called war on terror could be locked away indefinitely with no hope of due process---no hope of being exonerated or at least given a definite sentence.
Yesterday I learned that Seantor Diane Feinstein of California has introduced leislation to undo these provisions of the NDAA, in the form of the Due Process Guarantee Act. We need to urge our Congress members to support this legislation. I intend follow this very closely!