Source: commondreams.org


The political, military industrial, corporate class in Washington DC continues to re-make our constitutional republic into a powerful, unaccountable military empire. Yesterday the U.S. Senate voted 93 to 7 to pass the National Defense Authorization Act (NDAA) for Fiscal Year 2012 which allows the military to operate domestically within the borders of the United States and to possibly (or most probably) detain U.S. citizens without trial. Forget that the ACLU called it "an historic threat to American citizens", this bill is so dangerous not only to our rights but to our country's security that it was criticized by the Directors of the FBI, the CIA, the National Intelligence Director and the U.S. Defense Secretary! For the first time in our history, if this Act is not vetoed, American citizens may not be guaranteed their Article III right to trial.

The government would be able to decide who gets an old fashioned trial (along with right to attorney and right against self-incrimination) and who gets detained without due process and put into a modern legal limbo. Does anyone remember that none of the first thousand people the FBI rounded up after 9-11, and which were imprisoned for several months (some brutalized) were ever charged with terrorism? Does anyone remember that hundreds of the Gitmo detainees who were handed over to their American military captors in exchange for monetary bounties were found, after years of imprisonment, to have no connection to terrorism?

When in doubt about a case, what do you think the government will again do? Does it prefer to submit its evidence to a jury's scrutiny and its witnesses to the trouble of being cross-examined in court by a defense attorney or would it be easier to have no questions asked and dump the accused into detainee prison without rights? I think we already know that answer from the nearly ten years of experience at Guantanamo.

Senator Lindsey Graham declared that suspected citizens open themselves up "to imprisonment and death". "And when they say, 'I want my lawyer,' you tell them: 'Shut up. You don't get a lawyer.'"

Of course, the politicians will say we are just talking about a few cases. But in fact the sky's probably the limit given the current legal ambiguity in the Patriot Act expansion of "material support for terrorism" to now include humanitarian aid and even mere advocacy speech without any need to prove an accused person intended to support any kind of terrorist violence. The Department of Justice has been currently using this ambiguity for over a year to investigate twenty three American citizens who are anti-war activists in Chicago and Minneapolis. Additionally, the "war on terror" will undoubtedly expand even more when it is de-linked from 9-11 -- see "The War on Terrorism Congress Never Declared -- But Soon Might" by Stephen I. Vladeck, a law professor, expert on these issues and associate dean for scholarship at American University Washington College of Law:

... an individual may be detained for providing "direct support" (which, in the government's view, may be nothing more than minor financial or logistical assistance) in aid of "associated forces" that are "engaged in hostilities against ... coalition partners." Thus, the NDAA effectively authorizes the military detention of any individual who provides such assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict.
Given this expansion of the 2001 Authorization to Use Military Force contained in the 2012 NDAA to encompass undefined "associated forces", we could witness the US government targeting a large range of political dissidents, human rights activists, humanitarians, and maybe even "occupiers".

The NDAA is deliberately confusing for political purposes but much is at stake. Obama's determination as to whether or not he will veto the problematic 2012 war funding bill will determine how Benjamin Franklin's glib response to the woman waiting outside the Constitutional Convention is ultimately answered. Franklin and other founding fathers had created "a Republic, Madam, if you can keep it". But a lawless Military Empire could now await where U.S. "emergency war powers" trump the Constitution, where the Commander in Chief becomes king for a term(s), the military enters into police state actions in violation of 130 years of Posse Comitatus law, and the Constitution becomes as quaint as the Geneva Conventions were for Alberto Gonzalez and the Bush Administration.

Corrupted, compliant politicians have already allowed their fears to get the better of them by going along with pre-emptive war in violation of the Nuremberg Principles and international law and torturing in violation of the Geneva Conventions and the Convention against Torture. So why should they also not go for detaining American citizens without constitutional rights or trial?

© 2011 Coleen Rowley

 Coleen Rowley, a FBI special agent for almost 24 years, was legal counsel to the FBI Field Office in Minneapolis from 1990 to 2003.  She came to national attention in June 2002, when she testified before Congress about serious lapses before 9/11 that helped account for the failure to prevent the attacks.  She now writes and speaks on ethical decision-making and on balancing civil liberties with the need for effective investigation.