Chicken Little was wrong. It was just an acorn, and so we ridicule those who appear to strike an hysterical tone about the end of times. The sky isn’t falling. The sky could never fall. How ridiculous to run around yelling “the sky is falling.” Yet every once in a while, very rarely but every once in a while, something happens that very well bring the sky down. Now may be such a time.
Unlike the more curious marketing names attached to legislation designed to convince the public that a law does the opposite of what its text says, or a law honors some bizarrely unusual yet horrible death of a child by criminalizing quasi-related routine conduct, this bill carries a pedestrian title, the National Defense Authorization Act for Fiscal Year 2012 (S.1867). Nothing scary at all. Just housekeeping stuff.
Yet buried within its body are words that have pushed Mark Bennett to the extreme :
Some senators think that indefinite detention without due process of Americans arrested in America was allowed before the passage of the NDAA (and that’s just their interpretation of the law that they allow us to know about).
Do you trust the government with such power? You shouldn’t.
Under Subtitle D, which hardly sounds threatening, you will find:
Detainee Matters:
- Section 1031 – Affirmation of the authority of authority of the Armed Forces of the US to detain covered persons pursuant to the authorization for the use of military force,
- Section 1032 – Requirement for military custody.
The powers given by Congress to the Executive Branch are both shocking and completely understandable at the same time. As terrorism replaced communism as our national nemesis, we’ve embraced our government’s measures of protection. We are Americans, and it is fundamental to our belief system that our government was conceived so that it would serve the People in perpetuity. From our earliest days in school, platitudes are drilled into our heads that make us secure in our belief that we are Exceptional. We, alone amongst regimes, systems and economies, are Free, and nothing can ever change that.
You might think, it could never happen here. Why? Once the legislative branch has given the executive branch the power, what’s to stop the executive from using it?
We like to pretend that we’re better than that, that our form of government makes us free, but our elected representatives have, by and large, done fuck all to preserve the very freedoms that made America.
Over time, the word “terrorism” grew an appendage, the word “homegrown.” In the past decade, a few men have been accused of being terrorists, of desiring to do what terrorists desire to do. We’ve been told how fortunate we are that the government found them, infiltrated their world, provided them with the wherewithal to go from irrational oddball to manifest killer but for the lack of a bomb, and then sprung the trap. We are saved.
Senator Carl Levin, a liberal Democrat from Michigan, chairs the Senate Armed Services Committee. He sponsored this bill. There’s neither basis nor need to attribute any malevolent intent to Sen. Levin. It’s acceptable to believe that he means well, intends only to protect us from the threat of terrorism. It’s safe to assume that Sen. Levin wants to do whatever he can to make sure that no one is ever harmed by a terrorist attack. He believes that our government would never use its power improperly. He believes in America.
The bill authorizes the President to declare someone a terrorist. It authorizes the military to take custody of the terrorist, even if he’s on American soil. That’s because the terrorists have “brought the battlefield to us.” This is a fine rhetorical flourish of the sort that stirs American souls. How dare they bring the battlefield to our shores, to threaten our homes and families. We are Americans, and we won’t let that happen without a fight.
The Posse Comitatus Act of 1878 prohibited the government from using the military to enforce law on our soil. The military was to fight wars abroad. American law enforcement was to deal with wrongs committed at home. But that was during Reconstruction, many enemies ago. You will no doubt remember that 9/11 changed everything, as we’ve been told with regularity.
Once seized, terrorists can be held indefinitely without trial. They are not mere violators of our laws, but terrorists. They are our enemy in a war. Had 9/11 not occurred, we might have been hard-pressed to believe that the word “war” could be used to describe these actions, not be a sovereign or uniformed cadre of warriors, but fanatics prepared to blow themselves up, to blow their children up, in order to blow us up. They shattered our sense of invincibility by taking down the Twin Towers, making us feel less Exceptional. But we are Americans, and we could not let that happen.
In the ten years that followed, many taboos have been broken, with the grudging approval of those upon whose judgment we trust. Step by step, we hear of their falling, but understand that it’s just a small step, made necessary by our enemy’s insidious genius and heartless tenacity. We bow our heads, but realize that we must give a little bit more to be safe. Freedom isnt free, and we surrender a bit of our convenience to the greater good of winning the war and protecting our fellow Americans.
This step, giving our President the power to declare a person a terrorist, and thereby remove him from all the protections and freedoms that we hold sacred, is a small one. It’s really just a variation on a theme that has been happening over the past ten years, as we’ve come to accept that a person who wants to blow up a plane is entirely different than a sad, sick person who takes a gun and shoots many students, or a workplace filled with people. That’s because he’s a terrorist, and we know this because the government says so.
This law will enable the government to place the label of terrorist on any person of its choosing and, by doing so, authorize the person’s effective disappearance from our world. As long as we trust the President, whether this one or another one who may someday take office, to never be wrong, to never act for a purpose other than our protection from terrorist threat, to never abuse the authority or be guided by an excess of caution or accept the bad advice of another, then no law can undermine our American freedoms.
We are exceptional. Our government is the best ever created. It can never break through the wall created by the founding fathers to assure our freedoms in perpetuity. Not unless we, the People, allow it.
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While I really like the Posse Comitatus Act and believe that the military should not be used for domestic law enforcement, I’d like to note that the original purpose of the Posse Comitatus was not to protect civil liberties. The Posse Comitatus Act was made to prevent the federal government from enforcing the federal civil rights legislation in the South. Until then, the federal troops had been used to routinely protect polling places and to enforce the voting rights of the black population. Typically, the federal military was acting as the posse of a federal marshal, thus getting legal law enforcement powers.
With the Posse Comitatus Act, the federal marshals could no longer summon the military for help, and they became powerless to enforce federal legislation against the wishes of the state governments. This was part of the reconstruction deal of 1878, which allowed the beginning of the Jim Crow era. Thus, while the Posse Comitatus Act is, in principle, a good idea, it was a tool of tyranny at the time of its making.
Isn’t it amazing how many things work out that way, when contrained by other constitutional protections. When next I write about jury nullification, which current advocates see as the means of undermining the government’s refusal to recognize that the War on Drugs is a massive failure, we can talk about how it was used to acquit defendants in the south, charged with lynching blacks and civil rights workers.
As long as we don’t break down the basics, we have historically bounced back from transitory “disaster.”