The Anti-Terror provision that was included in the defense spending bill recently signed into law has civil libertarians crying foul. They are understandably angry that Congress just passed a law that allows the U.S. government to detain anyone it suspects of terrorism, indefinitely without charges, even if they are a U.S. citizen and even if caught on American soil.
Obama signed the law, but rather honorably issued an statement essentially saying his administration did not plan to use it.*
It would seem that this provision violates the 4th Amendment’s protection against unlawful detention, which it clearly does. The provision is clearly unconstitutional and is unlikely to survive any challenge in court. More importantly, it is a rather embarrassing blemish on our national character. It should not have been passed in the first place, the President should have vetoed it, and it should be repealed immediately.
Due process is at the core of legal system. In fact it is an integral part of the fabric that makes up what it means to be an American. We are all taught about the sacred protections enshrined in the Bill of Rights. While we may argue about exact interpretations of these rights, no one, on the left or on the right, would argue that the Bill of Rights is un-American or un-Patriotic. These rights are in fact what make us who we are as a nation. (Iran recently held a few Americans for over a year without charges. If this provision is utilized, remind me, what makes us better that them?)
Clearly this law will not stand up in court, and thus I am not too worried about it.
However, if it is used, and then challenged, it could bring up a rather ironic outcome. Think about it. It is more likely to be used on a truly dangerous individual than on an innocent citizen regardless of the political affiliation of the administration that invokes its use. In that case, the challenge that inevitably ends up in front of the Supreme Court will involve a truly potentially harmful criminal. When the law is overturned and his detention determined to be unlawful, we may end having to free the very person from whom the law was meant to protect us!
Wouldn’t we be safer if we simply used the the due process which has worked pretty will to date?
*A little irony from the other side of the aisle: While Obama objected to the provision, he did so for the wrong reason. The provision provides for a specific time table for a indefinite detainee to be provided a hearing regarding his detention. The President objected to Congress’s specific requirements regarding the ways indefinite detainees are handled. He believed that the entire process should be controlled by the executive branch. Thus, his objection was over a Congressional intrusion into executive power rather than to the more controversial elements of the provision.
As a supporter of the current administration, I am disappointed with Obama for taking such a stand. I believe his statement saying it would not be used is merely convenient political “cover” since most people will never know the true reasoning behind his objection. However, in fighting for the integrity of the executive branch, Obama is following a long tradition of such efforts by past presidents. I didn’t like it when Bush (43) did it, and I don’t like it now, but I do recognize that it is a normal process in our three branch form of government. Thus, I begrudgingly respect Obama for acting in a manner that supersedes his administration and transcends the events of our current times.
Editors Note: Certain existing situations in today’s society seem completely our of touch with reality or common sense. From time to time this blog will argue such points in the category “Un-Common Sense”.