Late last year, Congress ignited a firestorm of protest among conservatives and liberals alike when it took up a provision in the normally uncontroversial National Defense Authorization Act (NDAA). The problematic language permits the indefinite detention of persons suspected of engaging in “terrorist” actions within the United States, including American citizens. The provision is clearly averse to our Bill of Rights and, like most bad ideas emanating from Washington, it refuses to die.
This particular provision amended the 2001 resolution known as the “Authorization of the Use of Military Force” (AUMF), which was passed by Congress in the days immediately following the 9/11 attacks. This resolution was intended to allow the U.S. military to take action against those persons responsible for the attacks. It included language that would permit our armed forces in Afghanistan, for example, to detain any “person who was a part of or substantially supported al Qaida, the Taliban or associated force … without trial until the end of the hostilities.”
The AUMF, despite being clearly and obviously targeted toward foreign terrorist organizations and individuals, at the time concerned many of us because of its broad, open-ended language. These concerns turned out to be valid. In the decade since its passage, the resolution has been cited by the federal government to justify various actions violative of the civil liberties of Americans, including warrantless surveillance of phone and Internet communications.
Last Friday, Reps. Justin Amash (R-MI) and Adam Smith (D-WA) offered an amendment to the FY 2013 NDAA that would have reaffirmed due process rights, making it clear that “[n]o person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force.”
This bipartisan language did nothing more than affirm that persons arrested in this country, including U.S. citizens, maintain rights under our Constitution. Still, the Amash-Smith provision was blasted by neoconservatives. One of those was Cully Stimson, a former Bush administration official. Stimson claimed the Amash-Smith proposal would actually encourage terrorists to come to the United States. He also maintained the amendment would take the country “back to the future,” meaning a pre-9/11 state of mind.
Stimson’s hyperbolic and inaccurate language was designed to scare members of Congress and the public into supporting the post-9/11 mentality that has prevailed in government since those tragic events, a philosophy based on the proposition that “whatever is necessary to prevent another terror attack must be done, regardless of whether it is consistent with our Constitution.” Such rhetoric had its intended effect.
From the floor of the House, Rep. Amash pleaded with his colleagues to pass his amendment, noting correctly that the Constitution explicitly protects all “persons” inside the United States. Despite his pleas and those of several of his colleagues, the House voted down the amendment, 238 to 182. The House opted instead to adopt far vaguer language proposed by Rep. Louie Gohmert (R-TX), which states only that the NDAA will not “deny the writ of habeas corpus or deny any Constitutional rights for persons detained in the United States under the AUMF who are entitled to such rights.”
There was at least some good news last week for the Bill of Rights’ supporters. U.S. District Court Judge Katherine Forrest of the Southern District of New York struck down the offending part of the NDAA on First Amendment grounds. Judge Forrest noted in her opinion that “[a]n individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.” She continued that this type of political speech “is precisely what the First Amendment protects.”
In the post-9/11 climate, even small victories, such as this opinion reaffirming that the Bill of Rights is still alive despite efforts to decimate it by the Congress, are welcome — even if short-lived.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.