It is wrong, it is terrifying, and it is a stain on our political history that must be removed. It threatens American citizens with indefinite detention without habeas corpus, shamelessly violating the Constitution and Bill of Rights. Title X, Subtitle D, Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 is unconstitutional.
But it is law, and we must deal with it.
For months, citizens have been protesting against the passage of this law because of that section. Unfortunately, it passed the House and Senate handily, with at least two thirds of the vote in both chambers. It went to President Barack Obama’s desk, and it is signed, and it is law, despite the constant pressure from constituents against it.
The president cannot be blamed for this law, though. It is not President Obama’s fault that this happened. It is solely on the backs of Congress, and that reality cannot be denied.
Consider what would have happened if President Obama had vetoed the bill. It would have returned to Congress, and the veto would have been overridden. If Congress didn’t override the veto, the military budget would have to be completely rewritten.
A defense authorization act is passed every fiscal year to fund the military and defense department. It is a necessary bill; without it, the Pentagon couldn’t keep its lights on. This being the case, somebody in Congress must have slipped this terrible provision into this run-of-the-mill omnibus bill.
Why? An overreaction to terrorist threats, perhaps. A desire to make the military even stronger than it needs to be, or should be under the Constitution. It’s vague reasoning, but it’s the only vaguely reasonable justification. In any case, it was a political jerk move that resulted in a political SNAFU.
This situation also becomes the president’s catch-22. Veto the bill, and either Congress will make it law anyway or the military budget has to be reworked and re-voted on. Sign the bill, and incur the wrath of civil libertarians. President Obama’s move in this political game was to sign the bill and move along with defense business as usual – but still send a message that would satisfy civil libertarians.
President Obama made this clear in the signing statement he wrote to accompany the new law. He made a point of saying that his administration will not enforce this particular provision. His administration happens to like habeas corpus rights, and their counterterrorism strategy has, thus far, done very well. Just ask Osama bin Laden.
President Obama should be commended for at least making it clear that the nonsense of that section will not stand during his administration. He is a smart president, with a smart Pentagon who knows who should be detained and who is a law-abiding citizen. His stance is clear: the methods we’ve been using are fine, the bill will be signed to make sure the military is at least still functional, and just because we are authorized to do something does not mean that we will do it.
The real political nightmare will come when the next president is inaugurated, whether that’s next year or in four years. President Obama has chosen not to enforce this authorization and to continue with the counterterrorism strategy that has been very effective so far. But what about the next president, Pentagon and Cabinet? Will they understand the constitutional problems with this provision and choose to ignore it as well? Or will they undermine civil liberties for the sake of “national security,” and use this section to their own advantage? Unfortunately, this is purely a wait-and-see situation.
What are we going to do about it, ask the Supreme Court? This isn’t as easy as one may think. Taking a law to SCOTUS requires an actual case, an actual conflict to solve in the justice system. And a case cannot happen until someone has been wronged under this law. This is called “standing to sue,” and it is required for a Supreme Court case. Without some sort of personal harm done to somebody because of this law, the process of declaring the law unconstitutional cannot happen.
This is the unfortunate political reality we must face. Congress painted the Supreme Court, the President, and the people into a corner. The legislators who allowed this to pass are the ones to blame, so let’s give blame where blame is due (and credit as well – both of Oregon’s Senators voted “nay” for the bill). The law is unconstitutional. The political reality is unfair. Congress is, as they so often seem to be, unclean. And our civil liberties could be potentially undone; it all depends on whoever’s in charge.
Knowing this, what can we do? Congress started this problem, so they are the ones we must pressure. Write letters. Organize protests. Tell them to pass something, anything that would re-shield our civil liberties. An election year has begun; voters, vote out the people who approved this heinous measure.
If you do nothing else, pay attention to the political scene. What are legislators saying about this? How do they reply to the pressure, the prospect of this political nightmare? Find out their positions, and make sure yours are heard. Tweet! Update your status! The more yelling and screaming is done about this, the better. That’s the way to force people to listen.
What began as a terrible political reality can become a victory for the people. We can do more than wait and see how this plays out – but if we’re going to blame people, we need to blame the right people, and tell them to do what is right. Habeas corpus is being attacked. The president is defending it. Congress needs to be pushed into doing the same.