Congress vs. the Constitution

Controversy over the National Defense Authorization Act (NDAA), and its particular provisions for expanding military detention without trial, finally broke into the national news last week after Dick Cheney helped secure a monumental neoconservative victory in the Senate in late November. This debacle over fundamental rights holds implications for Congress, for the media and for the 2012 presidential race. It also dramatically impacts the Constitution, the Tea Party, and the Occupy movement.

Recurring failures by Congress to consider either reason, civil rights or national security are unfortunately well established. The PATRIOT Act has been in force for a decade, invading the rights of law-abiding Americans since a stunning display of Congressional incompetence in 2001. Few members of Congress even read the bill before passing it with only a single dissenting vote in the Senate.

In 2005, journalists risked prosecution to reveal a secret wiretapping scheme by the National Security Agency (NSA). Since then, every federal court ever to have reviewed the program on the merits has ruled it unconstitutional, while higher courts insulated mass wiretapping by ruling that executive secrets lie beyond judicial review. Yet, perhaps predictably, Congress also authorized that unconstitutional program through the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008.

The FISA struggle is relevant today for two reasons. First, much as he has promised to veto the NDAA over its expansion of military detention, President Obama pledged in 2008 (when a senator) to filibuster the FISA amendments. Then he caved, not only failing to mount a filibuster, but completely reversing positions and voting for the bill, authorizing ongoing NSA crimes and insulating telecom companies for their roles in ongoing abuses en masse.

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Grassroots mobilization is necessary to force the president to hold true to his promise and to keep the Senate from overriding the veto.

Second, both PATRIOT and FISA dramatically expanded government surveillance programs, which violate the privacy of law-abiding Americans. But arbitrary detention without trial, of the sort authorized under the 2011 NDAA, is even worse: it denies the freedom of law-abiding Americans, striking the right to trial, access to counsel and the role of independent courts.

The NDAA's military detention provisions thus represent a frontal attack on the Fifth Amendment (which once guaranteed due process) and the Sixth Amendment (which once ensured the rights to trial, access to counsel and an opportunity to confront accusers). They also deeply erode the First Amendment – but in a less obvious way, and a way in which any activist would do well to consider.

Last spring, the Supreme Court decided Humanitarian Law Project v. Holder, upholding the conviction of a charity prosecuted for supporting conflict resolution workshops in Turkey. The Court held that, under the PATRIOT Act's material support provisions, a defendant may be held guilty of material support for terror without ever intending to support violence.

Months later, the FBI conducted raids of property of dozens of peace and justice activists. Today, it continues an investigation that has stretched beyond a year. It's one thing for activists to be monitored, infiltrated and then harassed by government authorities for their speech and political views.

The NDAA would vastly enhance those government powers, creating the authority to detain indefinitely without trial. Mere accusation would be enough to deny freedom to law-abiding people. Rather than face FBI harassment, those activists – and any others raising awareness about issues like foreign policy or corporate environmental policies – could face the American equivalent of a gulag.

The PATRIOT Act's material support provisions allow our government to criminalize speech and repress political dissent, a frontal assault on the First Amendment. And with material support cases grounded in associational guilt, the First Amendment is also eroding from its figurative sides.

The NDAA would expand those assaults by eliminating the need to prosecute. In the hands of a president, attorney general, US attorney, or even, potentially, state or local prosecutors willing to use their powers for political purposes, it offers the legal authority for severe repression.

Ironically, groups most likely at risk for military detention represent diverse interests: the Occupy movement has been addressed as a terror threat by London police and various critics in the United States, and Tea Party groups have raised concerns about counterterrorism scrutiny of militia movements. These characterizations are bad enough, but creating the authority to detain individual participants indefinitely is vastly worse.

For any activist, resisting the NDAA is a matter of self-interest. Groups around the country, including Occupy sites in San Francisco, Los Angeles and Tacoma, Washington, as well as the United National Antiwar Coalition and Bill of Rights Defense Committee, will mobilize this December 15 to celebrate Bill of Rights Day. With the future of our Constitution hanging by a thread, this is no time to watch silently from the sidelines.