An execrable ancestor

Bruce Fein Constitutional Lawyer
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The execrable ancestor of the National Defense Authorization Act of 2012 (NDAA) is the Fugitive Slave Act of 1850. Frederick Douglass protested, “Under this [Fugitive Slave] law the oaths of any two villains (the capturer and the claimant) are sufficient to confine a free man to slavery for life.” Under the NDAA, the suspicion of the president is sufficient to confine an American citizen to military detention for life without accusation or trial. The twin laws make for an alarming tale.

The Fugitive Slave Act passed with overwhelming congressional support. Only four members of Congress voted against it. The South clamored for its enactment even though very few slaves ever escaped from their owners.

The act vandalized due process. A claimant was authorized to obtain possession of an alleged fugitive slave by presenting an affidavit asserting ownership to a commissioner appointed by the judicial branch. The alleged slave was prohibited from testifying to discredit the claimant’s enslavement affidavit, which is the equivalent of proscribing a criminal defendant from asserting his innocence. The commissioner received a $10 fee for sustaining an enslavement claim, but only $5 for upholding freedom. During the life of the act, slave claimants prevailed in 322 cases and freedom triumphed in 11.

The NDAA defiles due process more egregiously than did the Fugitive Slave Act. Section 1021 empowers the military to detain for life without trial any American citizen captured in the United States whom the president maintains is “substantially support[ing] … al-Qaeda, the Taliban, or associated forces” engaged in hostilities against “coalition partners” of the United States. None of the key terms in section 1021 are defined to constrain the president’s power to disappear Americans into dungeons at Guantanamo Bay or elsewhere. “Al Qaeda” is undefined. “The Taliban” is undefined. “Associated forces” is undefined. “Coalition partners” is undefined. “Substantially supporting” is undefined. The words can mean whatever the president, like Humpty Dumpty, wants them to mean. “Substantial support” might be said to include any criticism of the United States government for flouting the Constitution in combatting international terrorism.

The president is crowned by the NDAA with untrammeled authority to decide the proof and method for the executive branch to determine whether an American is substantially aiding al-Qaeda, the Taliban, or associated forces against a coalition partner. There is no judicial involvement. In sum, under the NDAA the president may imprison for life any American citizen for an alleged linkage to international terrorism against coalition partners of the United States on his say-so alone — the very definition of tyranny articulated by James Madison, father of the Constitution, in Federalist No. 47.

The NDAA emerged from the Senate and House Armed Services Committees without a single hearing. The Judiciary Committees waived jurisdiction. Only 13 senators voted against the sacrilege to due process. The statute is naked of findings that the awesome power lodged in the president was necessary to cure a deficiency in existing laws. It was enacted more than a decade after the 9/11 abominations, when it was known that no American citizen on American soil who substantially supported al Qaeda had ever eluded prosecution and punishment in the criminal justice system before any American in America had been harmed.

The NDAA, like the Fugitive Slave Act, is tyranny for the sake of tyranny. It is an ugly spot on the Constitution like Lady Macbeth’s “damned spot” for complicity in assassination.

Who in Congress will earn a chapter in Plutarch’s Lives by sponsoring repeal legislation?

Bruce Fein was associate deputy attorney general under President Reagan, 1981-83, and is senior policy advisor to the Ron Paul 2012 Presidential Campaign and author of American Empire Before the Fall.