There is no justice when our government can decide to ship you to a foreign country because it doesn’t want to obey the laws here. Yet that is what legal experts say the National Defense Authorization Act of 2012 (NDAA) will do.
Its quickly becoming public knowledge that there is in fact a lot more wrong with NDAA than we originally thought. At first, human rights activists were worried the bill would allow the President to detain any American indefinitely without trial on the mere suspicion of providing “substantial” aid to terrorists or “associated groups.” Later, we discovered that the bill forbids oversight on military contractors who would have been required to disclose their political contributions prior to receiving funding.
Now, journalists studying the massive bill and the congressional record have discovered a provision which allows the President to deport American citizens to “foreign entities,” where presumably, they would be treated in a way not currently acceptable under American law. We’ve done this before with non-Americans in a process known as “torture by proxy.” If legal scholars are correct, the government can transfer untried and uncharged American citizens overseas for torture as well.
The law reads:
“Congress affirms that the authority of the President to use all necessary and appropriate force… to detain covered persons pending disposition under the law of war… The disposition of a person under the law of war… may include the following: (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.”
This means that American citizens could be transfered overseas, possibly to Saudi Arabia (as we have done with others) or to a CIA base operating on foreign soil where there are few laws relating to torture and detainment. When Americans who have never been tried can be deported outside of the United States and handed off to foreign governments or other “entities” to be tortured, we have entered a new phase of despotism that we have never seen before. There are essentially no laws left protecting the rights of individuals. Due process, the right to a lawyer, the right for others to even know you still exist are in question.
Critics have said, we believe erroneously, the law does not apply to US citizens. The law states:
“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”
But, the president already claims these powers and many others through the National Emergencies Act and The Insurrection Act. Others disagree, but the fact that this is highly controversial would seem to indicate the President thinks he has this power and would use it, much in the same way the president claims powers to use warrant-less wiretaps.
Mother Jones has an article out yesterday discussing this further. They note:
“David Glazier, a professor at Loyola Law School in Los Angeles and expert on the law of war, argues that Obama already had the power to transfer suspected Al Qaeda members (even Americans) to foreign custody, and the NDAA simply endorses that view. “If the president could lawfully transfer a German prisoner of war to a foreign country, then in theory he could do the same thing with an American prisoner of war.”
Daphne Eviatar, a lawyer with Human Rights First, [said,] “It’s not necessarily changing the authority the US government has today, but it’s institutionalizing it.”
Sen. Dianne Feinstein (D-Calif.) says the relevant section of the NDAA doesn’t change “existing law” with regards to the detention of US citizens, permanent legal residents, and terrorist suspects captured in the United States. The problem is that there’s a debate over what ‘existing law’ is.“
That really is the heart of the problem. While congress is content to pretend there are no significant changes taking place in this law, it is actually condoning the worst presidential overreach this country has ever seen. Law Professor Jonathan Turley agrees, saying on C-Span:
“We’re now seeing this shift where many of the things that were being done abroad and citizens were always told, ‘Look, we just doing this to other people. We do this outside our country’… now it’s coming home.
President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review, except his own. If he’s satisfied that you are a terrorist, he says that he can kill you anywhere in the world including in the United States.
Two of his aides… reaffirmed they believe that American citizens can be killed on the order of the President anywhere including the United States. That has left civil libertarians heads exploding. You’ve now got a president who says that he can kill you on his own discretion. He can jail you indefinitely on his own discretion… I don’t think the the Framers ever anticipated that. They truly assumed that people would hold their liberties close… We’ve had three polls in the last year and Americans say they are more afraid of their government than they are of outside terrorists.” (This is a must watch video, but we apologize in advance for the poor quality of the C-Span video player).
As of September 14, 2001, we have been in a state of National Emergency. According to the Washington Times, this gives the President the authority to (among other things) “impose censorship and martial law.” Even a person jailed by illegal means has no recourse in the courts. In 1973, the US Senate noted that declaring a national emergency give the president broad authority:
“Taken together, [they] confer enough authority to rule the country without reference to normal constitutional processes. Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communications; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens.”
Much of this authority has been kept in place. Although it is usually used against Americans trading with foreign powers like Libya during the Reagan administration, it is increasingly being used to justify global war without explicit permission from congress. The National Emergency Act was created with the intention of forbidding the president from keeping emergency powers indefinitely, but to date we have been in a state of emergency for over 10 years.
The separation of powers described by the constitution is gone. There are currently no significant restrictions on the power of the presidency. The only authority not claimed by the president are those still delegated to the other branches of government, but they are quickly surrendering those. The only other restriction on the power of the president is public expectations, which will hardly be enough to limit abuse in a massive and secretive security state.
