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 V.20 No.50 | December 15 - 21, 2011 

Systemic Risk

Freedom in Danger of Being “Disappeared”

I’m not the only one afraid of the National Defense Authorization Act.

Bloggers throughout the country have bashed the measure, calling it “ridiculously scary” and “the most dangerous bill since the Patriot Act.” Alibi columnist Alex E. Limkin wrote in the last edition: “I am concerned for my own safety.”

At issue are the detainee provisions of the act, widely believed to allow the military to lock up U.S. citizens without charge or trial if they are suspected of ties to terrorists. This would hypothetically allow the military to grab someone off the street and hold them in a black site detention facility for, well, forever without bringing them before a judge or even giving a reason.

“Because there is ambiguity, President Bush managed to get away with holding two American citizens for years and years as indefinite detainees.”

Shayana Kadidal of the Center for Constitutional Rights

The bill passed the Senate with a vote of 93 to 7. New Mexico’s senators, Tom Udall and Jeff Bingaman, voted in favor of it. But they also voted for an amendment that would strip the problematic detainee portion out of the bill. It failed 38 to 60.

Here’s the really scary part: The government may already be allowed to detain its own citizens indefinitely.

Abi Hassen, mass defense coordinator for the National Lawyers Guild, told me in an interview that the bill reinforces the president’s ability to mark Americans for military detention. “It’s basically a legitimization of something that’s been happening already,” he said.

“In the hands of the wrong president, in the hands of a president that has no respect for constitutional liberties ... .”

Peter Simonson, executive director of New Mexico’s chapter of the ACLU

The president can tag someone as a suspect. And with only that—no hearing or evidence—the suspect, Hassen said, “can be labeled a terrorist and therefore an enemy combatant and therefore the Constitution does not apply to that person.”

But there have already been at least two cases of U.S. citizens being held in military custody for extended periods of time without being charged or tried, according to Shayana Kadidal of the Center for Constitutional Rights. He’s talking about Yaser E. Hamdi and Jose Padilla, two American citizens who were detained by the military as enemy combatants.

Kadidal said it’s unclear whether today’s laws—including the Patriot Act and the Authorization for Use of Military Force—allow such detentions. “That’s kind of the state of existing law,” he said. “It’s very ambiguous as to whether or not the president can assert these kind of inherent powers. And because there is ambiguity, President Bush managed to get away with holding two American citizens for years and years as indefinite detainees.”

I contacted the offices of both senators and all three congressmen in New Mexico and received conflicting interpretations of the bill. But all five said they are opposed to allowing indefinite detention of U.S. citizens.

For instance, in an email statement, Rep. Martin Heinrich said the bill “would risk putting American citizens in military detention, indefinitely.”

But a statement from Rep. Steve Pearce’s office provided a different analysis:

"The bill does not, in fact, give the military the right to detain U.S. citizens indefinitely,” he said. “In fact, the language of the bill explicitly states that U.S. citizens do not fit the criteria for who can be detained by the military.”

Unfortunately, many legal experts do not share Pearce’s interpretation. Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, said the bill will allow the government to continue its practice of detaining terror suspects without being hindered by the due process of law. “It is true that the powers in that act would technically authorize that kind of activity.”

He added that the FBI and the CIA have both gone after people without producing evidence they were tied to al-Qaida, and in some instances, actually tortured them. “In the hands of the wrong president, in the hands of a president that has no respect for constitutional liberties ... .”

Peter Kierst, a political science professor at UNM, said the idea of detaining U.S. citizens without putting them in front of a judge contradicts the spirit of the Constitution. The bill is a classic example of Congress going against the wishes of the people who wrote the Constitution, he said. “If they had intended to have exceptions in [the Constitution] for times of grave national crisis or people who were particularly awful criminals, they could have written it that way. And they didn’t. And that was a real, conscious choice.”

The bill that was passed by the Senate is in the conference committee process. It will have to be reconciled with the version that the House passed—without the detainee provision—in May. So final language may still be changed.

 
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