George Washington crossing the Delaware, in Emanuel Leutze’s iconic (though historically inaccurate) painting
President Barack Obama desecrated the Constitution that he and I swore to defend when he signed the National Defense Authorization Act of 2012, which includes language violating the Bill of Rights and other constitutionally protected liberties.
The NDAA affirms that the president has the authority to use the Armed Forces to detain any person “who was 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.”
Under the law, the president also may lock up anyone who commits a “belligerent act” against the U.S. or its coalition allies “without trial, until the end of the hostilities.” The law embraces the notion that the U.S. military can be used even domestically to arrest an American citizen or anyone else who falls under such suspicion — and it is “suspicion” because a trial can be avoided indefinitely.
Yes, I know that the Obama administration’s allies got some wording put in to say that “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,” nor shall the NDAA “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.”
And there were some waivers stuck in to give the president discretion over whether to send someone into the gulag of the Military Commissions system possibly for the rest of a detainee’s life, given the indefinite nature of what was formerly called the “war on terror” and what the Pentagon has dubbed the Long War.
It’s true as well that after signing the NDAA on New Year’s Eve, President Obama engaged in some hand-wringing. He expressed “serious reservations” about some of the law’s provisions and declared, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He added that he would interpret the law “in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”
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But those who hoped that Barack Obama, the onetime constitutional law professor, would begin rolling back the aggressive assault on civil liberties that President George W. Bush began after the 9/11 attacks must be sorely disappointed.
Those existing laws — including the original post-9/11 use-of-military-force authorization and the Military Commissions Act passed in 2006 and modified in 2009 — opened the door for presidents to declare anyone of their choice, American citizen or non-citizen alike, an “enemy combatant” and to subject the person to military prison or even assassination.
Just think of U.S. citizens Jose Padilla (who was tossed into the Navy Brig in Charleston, South Carolina, for years) and Anwar al-Awlaki (who was murdered in a drone attack in Yemen in 2011). So, it’s not especially reassuring that President Obama insists that the new law doesn’t dramatically worsen the decade-long erosion of constitutional rights.
The American Civil Liberties Union also disputed Obama’s claim that the NDAA was essentially business as usual. “The statute contains a sweeping worldwide indefinite detention provision,” the ACLU said, without “temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”
In other words, the ACLU is noting that since the United States relies on the principle of “laws, not men,” the assurance of any individual president that he won’t exploit an abusive legal power doesn’t mean that the next president won’t. The right thing to do in such a case is to veto legislation that contains that kind of unconstitutional provision, not simply sign it, promise not to use it, and express “serious reservations.”
Sure, if President Obama had exercised his veto, he would have been criticized in some corners as “soft on terror” and he would have undercut his political message about the need for bipartisanship amid the dysfunction of Washington. But compromising on the Constitution isn’t like adding a road project to secure some congressman’s vote.
Fifty years ago, when I was commissioned a 2nd lieutenant in the U.S. Army, I took an oath to support and defend the Constitution of the United States against all enemies foreign and domestic. I knew that the oath carried no expiration date. Back then, I could not conceive of the possibility that one day this would pose a problem. I felt that we Americans were pretty much all on the same team. But how will I honor my oath in today’s circumstances?
The winter is getting cold and I am getting old. Still. Do I have enough integrity; do I have enough genuine love for my country to be a “winter soldier” and do what I can to stop this steady encroachment on liberties that many other soldiers fought so valiantly to establish and protect?
It is a challenge not wholly different from the cold reality faced 235 winters ago by George Washington’s army. The British had forced the army’s retreat from New York just months after the signing of the Declaration of Independence on July 4, 1776. Not only was the American cause at low ebb, but Gen. Washington faced the annual crisis caused by the expiration of the Continental Army’s period of enlistment. Some kind of success was desperately needed.
Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in inner-city Washington. He was an Army infantry/intelligence officer and then a CIA analyst for 27 years, and is now on the Steering Group of (more…)