(Photo: Michael Kappel / Flickr)
The government is a beast brought in to defend the people from other beasts, but against which the people must also be able to defend themselves. As we enter the second decade of the so-called war on terror, we are continually and increasingly being asked to sacrifice our protection from the government in exchange for the government’s protection from the terrorist threat. Now, we face a government out of balance: an executive branch constantly overreaching, a judiciary refusing to assert jurisdiction over matters of law that must urgently be decided for our protection and a Congress so torn apart by party loyalties it is willing to put our most fundamental and shared political commitments at risk for the sake of partisan gain. In the face of this, we, the people, must carefully reflect upon our rights and fight for enhanced and explicitly enforceable protections in the Constitution against our government’s aggression.
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Over the past decade, the US government has incubated a renegade system of justice within the Guantanamo military commissions. The recent signing of the National Defense Authorization Act (NDAA) of 2012 marks its completion, guaranteeing the terrifying prospect of a two-tier system of justice for all civilians, regardless of citizenship. Our new system of justice effectively operates parallel to the judicial branch of the government; at its core lies the recently codified presidential authority to decide which justice system a civilian enters. Moving into the second decade of this indefinite, global “war on terror,” we now find ourselves with a juridical wormhole forming at the center of our legal landscape, a space where a civilian’s access to due process or protections under either the Geneva Conventions or the Bill of Rights is largely at the discretion of the executive branch of the US government.
The NDAA has accomplished the final institutionalization of Guantanamo’s radical juridical architecture by making the closure of this facility virtually impossible, and failing to check the president’s power to hold indefinitely and without charge civilians unanimously cleared for release by the relevant security agencies. By reaffirming the president’s power to transport civilians from traditional international and domestic criminal procedures to this unconditional parallel system and, in addition, granting the executive office sole authority to waive the restrictions that prevent any transfers out of Guantanamo, the NDAA has catalyzed our nation’s descent into an authoritarian and militaristic regime.
Living in a post-911 world means enduring a suspension and erosion of the system of checks and balances designed to protect us not from our enemies, but from ourselves. In the face of the terrorist threat, we have been asked to make only one important sacrifice for the security of our nation. But that sacrifice is profound: we are asked to sacrifice our own protection from the state. With increased urgency we must ask ourselves, can we afford to be at the mercy of a president who has the power to use “all necessary and appropriate force” against any civilian who “substantially supports” a terrorist organization or “associated forces,” including detaining them “without trial until the end of hostilities” in a military prison or even targeting them with “lethal operations” without any judicial oversight? Never before has the moral rectitude of a president of the United States been considered a sufficient bulwark against injustice, nor should it be.
Can we afford to be at the mercy of a Congress that instead of checking the executive branch continues to hand the president blank checks by passing dangerously vague legislation like the NDAA? It is precisely through the unchecked power to decide on the criteria for key terms like “appropriate force” that the executive branch has been able to erect a parallel legal reality for any civilian accused of “terrorism.” It only takes a quick survey of our legal landscape to see the broad terrorist label creeping into constitutionally protected activity (e.g. The Animal Enterprise Terrorism Act) and applied to a class of crimes and civil disobedience already curtailed by state and federal laws. Similarly, it only takes a quick survey of the measures deployed by police departments across the nation against Occupy protesters to see the extent to which counterterrorism units already monitor the right of the people “peaceably to assemble and to petition the Government for a redress of grievances.”
As more and more legal constraints are loosened around the executive branch in the name of counterterrorism, can we afford to be at the mercy of courts that keep refusing to assert jurisdiction over cases that seek to challenge the executive branch’s efforts to indefinitely extend emergency powers through the overuse and abuse of “state secrets” and “national security” claims to exception? The secret reality of Guantanamo has been steadily spilling over into domestic law enforcement practices. In the last ten years, we have seen the detention of American citizens without criminal charges on the basis of “secret evidence,” extended pre-trial solitary confinement under special administrative measures and the wiretapping of attorney-client communications on the basis of “reasonable suspicion” that mounting one’s legal defense would “facilitate acts of terrorism.” These were the exceptional measures incubated in Guantanamo and now officially imported by the NDAA.
The actual scope of the NDAA is conspicuously obscure, but Sen. Lindsay Graham made its essence perfectly clear when he declared that the US “homeland” is now part of the “battlefield” in the war on terror. Rather than being reassured by the president’s promise that he will “interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war and all other applicable law,” we should be asking ourselves whether we can afford to have laws that leave due process up to the president’s discretion. Is due process fated to become a campaign slogan, a matter of hope rather than rule of law?
The corrosion of basic legal protections that has been systematically carried out by our government is antithetical to both political parties that, in spite of their differences, are bound by oath to maintain the basic political commitments that are the essence of our state, including the right to due process and the balance of powers among the three branches of government. The system of checks and balances increasingly looks like it is being carried out between Democrats and Republicans as part of a never-ending campaign strategy, rather than being carried out by the executive, legislative and judicial branches of government as a matter of democracy. As a result, the very fabric of our democracy is being threatened by a wormhole forming within the executive branch and leading to an alternate legal regime where constitutional and international laws might no longer reach.
Freedom might not be free, but vague and poorly drafted laws like the NDAA go a step further by obscuring the price we are actually paying. Instead of letting us decide on the price we are willing to pay, our government is demanding we hand over our Bill of Rights on the bare assurance they will only take their fair share.
We, the people, the fourth branch of government, are in a race against the clock to establish explicit constitutional safeguards against our government’s aggression. The power accorded the executive branch to transpose any civilian from one legal regime to another reflects the erosion of the system of checks and balances designed to ensure the integrity of our government. By wielding both the accusation of terrorism and the remedy against it, the executive branch has taken over the role of creating the legal regime through which it operates.
At this point, in order to protect ourselves from the executive branch’s overreach, the most apparent and only surefire solution is to draft new amendments to the Constitution and address the uncertainties of the current situation. In effect, the Bill of Rights must be expanded to establish a bulwark against these new infringements against our rights. The people’s counter-arsenal must reach outside of case law to introduce more powerful parameters. Red or blue, whoever wins this upcoming presidential election will keep telling us that these times call for exceptional measures. We agree. Unless we can make it clear as a matter of constitutional law that there are exceptions we will absolutely not tolerate, there will be no guarantee of our security against the mounting aggression of our own government.