Fifth Amendment latest victim of War on Terror

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During the course of the now decade-old “War on Terrorism,” both the administration of President Barack Obama and that of his predecessor, George W. Bush, aided by a largely compliant Congress, have sought and been given — or simply taken — unprecedentedly broad powers of surveillance and evidence-gathering that have severely diminished the heretofore protected civil liberties of U.S. citizens. Now, thanks to action the Congress is preparing to take, the threats to those liberties are being taken to a dangerous new level.

The vehicle for this threat is the National Defense Authorization Act (NDAA). Lurking within this normally non-controversial piece of legislation that sets the budget for the Defense Department is a provision that would permit the U.S. military to detain civilian U.S. citizens indefinitely, even in the absence of formal charges being leveled against them.

Its congressional supporters justify this radical and dramatic departure from more than two centuries of American jurisprudence by citing the 2001 Authorization of the Use of Military Force (AUMF), which Congress passed in the days following the attacks of 9/11 and the Bush administration used as a justification to expand its surveillance of U.S. citizens.

Supporters of the NDAA are arguing that the 2001 AUMF authorizes the detention of U.S. citizens by the U.S. military based on nothing more than a claim that they might be linked to al Qaida or other, broadly designated “terrorist” forces.

Specifically, the latest NDAA amends the AUMF to allow the military to detain any “person who was a part of or substantially supported al Qaida, the Taliban or associated forces … without trial until the end of the hostilities.” Of course, no one knows when — if — the “hostilities” will ever end, considering that a single “lone wolf” terrorist somehow “associated” with al Qaida or the Taliban could carry out or conspire to commit a “terrorist act” anywhere at any time.

Last week, Senators Rand Paul (R-KY) and Mark Udall (D-CO) fought hard to ensure American citizens were excluded from the reach of this provision of the NDAA. Paul recently invoked James Madison during the debate on the NDAA, noting his wise words that “[t]he means of defense against foreign danger historically have become instruments of tyranny at home.”

Unfortunately, the best effort in the Senate to protect Americans failed, with only 37 members voting to uphold our rights to be protected against indefinite detention without formal charges. A compromise was reached and easily passed, but it simply preserves the status quo — that the AUMF already authorizes whatever action the government believes is necessary to fight terrorism — and does nothing to prevent a misapplication of the law by some future administration.

At Reason magazine, Sheldon Richman writes, “Permit me to state the obvious: The government shouldn’t be allowed to imprison people indefinitely without charge or trial. It shouldn’t be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.” Unfortunately, far too few legislators and policy makers in the nation’s capital appear to be familiar with either document; at least insofar as conducting a perpetual war is concerned.

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.