As Barack Obama entered his second term in office, after a inauguration thoroughly reported by the media, there was one thing that the media failed to report on — namely Obama's gross violation of the Constitution and the rule of law under the National Defense Authorization Act for both fiscal years 2012 and 2013.
While these bills are required to be signed by the president each year, the 2012 bill contained provisions violating the rights of innocent Americans. Section 1021, the provision allowing for indefinite detention, can be used by the U.S. government anytime, anywhere, on anyone. This section "designates" the world as a battlefield, and allows the federal government to arrest anyone suspected (not convicted) of being linked to Al-Qaeda or any terrorist organization.
Sec. 1021 defined "suspected terrorists" as those that supported Al-Qaeda, the Taliban, or any other designated terrorist organization, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. However, it does not define what the term “substantially supported” means. This lack of clarity continues the trend of the erosion of civil liberties since Bush, and it breaks many of the promises Obama once made, including closing Guantanamo Bay and ending the use of torture across America.
While the erosion of civil liberties in the Obama administration is not new, given Obama's failure to close Guantanamo bay and end the use of torture, his extension of the PATRIOT Act, his persecution of whistle-blowers, and his assassination of U.S. citizens through drone warfare without trial, the NDAA gives the president the power to wantonly imprison people without a fair trial, habeas corpus, or due process. This violates both the Sixth and Fifth Amendments of the Constitution, theoretically giving the president the power to detain anyone on the grounds of terrorism, regardless of whatever crimes they did or didn't commit.
Even worse, despite the gross violation of the constitution embedded in the NDAA, most of Congress seems to have let it slide. voting in favor of it with a tally of 85-13 in the Senate and 283-136 in the House. These draconian provisions were supported by not only by Obama, but by Mitt Romney. He declared his support of the NDAA in one of the Republican primary debates to much boos in the crowd ... perhaps showing that, in many ways, Democrats and Republicans are similar. (Or perhaps there isn't really any real differences between Obama and Romney.)
The NDAA has largely been ignored by the media, but it has not gone unchallenged. A group of progressive activists led by author Chris Hedges have challenged it in a lawsuit, Hedges v. Obama. The plaintiffs claim that Section 1021(b)(2) of the law allows for the U.S. government and military to be given ability to indefinitely imprison journalists, activists and human-rights workers based on vague allegations of "terrorism."
The lawsuit has had significant progress over the past few months. In a May hearing, Judge Katherine Forrest issued an injunction against the NDAA. However, Obama's lawyers appealed the injunction. The appeal was dismissed by the same judge, who struck down the controversial provisions as unconstitutional on September 12, 2012, seeing legitimate fears in claims by the plaintiffs that they could face indefinite detention for exercising their First Amendment rights.
This was appealed yet again by the Obama administration, who wanted a grant of stay, claiming that the detention powers of the Authorization for Use of Military Force (AUMF) of 2001, which allowed the president to detain those who were involved in the 9/11 attacks and/or are members of Al-Qaeda or the Taliban, were similar to the NDAA’s Section 1021 powers. That stay was issued by Judge Raymond Lohier of the U.S. Court of Appeals for the 2nd Circuit, and lasts until February 6th, 2013. (It was initially supposed to be on September 28th, 2012.) In February, a three-judge appellate panel will hear the case.
All in all, the NDAA hearings on February 6th will be an important chapter in the history of the rule of law in America. Its draconian provisions are dangerous to the use of due process and habeas corpus in America, and it utterly violates the Constitution on many levels. The NDAA may have been drafted to "root out" terrorism, but it only serves to grant the president potentially dictatorial powers for the sake of national security. This, in turn, ultimately makes America more authoritarian and continuing the erosion of civil liberties since 9/11 and the declaration of the war on terror, a process which puts adherence to the Constitution in further jeopardy.
Hedges himself has stated that the fight over the NDAA is the "final battle" between the "restoration of due process" and the potential of the creation of a authoritarian state. And in many ways, it is up to Americans to fight the provisions of Section 1021 of the NDAA whether or not the lawsuit succeeds. In these turbulent times, it is important to remember the words of Benjamin Franklin: Any society that gives up liberty for the sake of security will "deserve neither and lose both."
If you support the lawsuit to restore the use of due process and the restoration of the First, Fifth, and Sixth amendments and of the U.S. Constitution, and live near 40 Foley Square in New York, you can join the plaintiffs on February 6th, 2013 to show your support for the Constitution. Find out more about the event here.