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Jewish World Review
Jan 30, 2012/ 6 Shevat, 5772
National Defense Authorization Act indefensible
Whether through legislative absent-mindedness or an alarming ignorance of the Constitution, Congress approved a chilling provision in the National Defense Authorization Act, the law that gives the Pentagon the go-ahead to spend the money allocated to it.
President Barack Obama signed the measure into law Dec. 31.
The provision is aimed at clarifying the circumstances under which the United States can detain suspected terrorists, presumably all foreigners. The bill targets detainees who were "part of or substantially supported al-Qaida, the Taliban or associated forces."
That's pretty spongy language, because it assumes a certain level of organization that, at least with the Taliban, may not exist. And who knows what "associated forces" are?
But the glaring fault in the provision is that it does not exempt American citizens from indefinite imprisonment without charge, trial or even a hearing -- an obvious violation of the Fifth and Sixth amendments of the Constitution. The Founding Fathers were unmistakably clear on those points.
A Senate amendment specifying an exemption for Americans was defeated 45-55, with most of the no votes coming from Republicans who can't invoke the Constitution enough when trying to justify some sketchy interpretation of states' rights.
According to Washington's The Hill newspaper, a bipartisan coalition of lawmakers -- spanning the spectrum from liberal Sen. Al Franken, D-Minn., to Tea Party movement supporter Rep. Jeff Landry, R-La. -- is organizing to change the detainee language. We hope it succeeds.
Some say the provision is a needless worry, because the Supreme Court would never uphold it. One hopes that the high court would not, but for a case to get there, an American would have to be imprisoned without charge or legal proceeding.
Remember how, for almost four years, the Bush Justice Department shuffled American Jose Padilla, the reputed "dirty bomber," from material-witness status in the criminal-justice system, to a Navy brig and back to a federal prison, trying to stay one step ahead of his lawyers? Padilla finally was convicted in a civilian criminal court, but on vastly reduced charges.
In a signing statement attached to the law, Obama wrote that he had "serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists."
The president has said his administration would never use this provision against American citizens. That's not to say the next president would not.
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