I have to admit, after witnessing 9/11 firsthand from my office window, I didn't care much for the civil liberties of the terrorists or potential terrorists we might catch. I knew I wasn't in danger of any part of the Patriot Act or other anti-terrorist legislation from that time period so it seemed to make me safer and didn't cost me anything. One fact about government that I knew but didn't care about at the time was that any "temporary" authorization of government action has a nasty habit of becoming permanent. What isn't much of a worry under a certain President becomes a much bigger worry when taking into consideration what future Presidents might do with the same authorization.
So I have to applaud Rand Paul for standing up and being the tip of the spear against both his Senate colleagues (of both parties, especially John McCain) and this administration with regards to the National Defense Authorization Act (NDAA) which codifies, for the first time, the indefinite detention of American citizens without trial until "the end of hostilities" in an undeclared war (which means forever). Not only that, it expands the scope of who could be covered for action by the US government. While the original authorization of the use of military force from 2001 targeted those who "
I met with cadets this week and they asked me about, 'what is the freedom we fight for?' The freedom we fight for is the Bill of Rights, it is the Constitution. If we have careless disregard for the Constitution, what are we fighting for?
I will tell you since I know this record of this debate will be widely read, that I want to make former objection to the crazy bastards standard. I don't really think that if we're going to have a crazy bastard standard that we shouldn't have a right to trial by jury, because if we're going to lock up all the crazy bastards, for goodness sakes - would you not want if you're a crazy bastard to have a right to trial by jury?
The discussion now to suspend certain rights to due process is especially worrisome given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So, we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored. My well-intentioned colleagues ignore these admonitions in defending provisions of the Defense bill pertaining to detaining suspected terrorists. Their legislation would arm the military with the authority to detain indefinitely – without due process or trial – SUSPECTED al-Qaida sympathizers, including American citizens apprehended on American soil.
I want to repeat that. We are talking about people who are merely SUSPECTED of a crime. And we are talking about American citizens.
Detaining citizens without a court trial is not American. In fact, this alarming arbitrary power is reminiscent of Egypt's "permanent" Emergency Law authorizing preventive indefinite detention, a law that provoked ordinary Egyptians to tear their country apart last spring and risk their lives to fight. Recently, Justice Scalia affirmed this idea in his dissent in the Hamdi case, saying: "Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime." He concluded: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." Justice Scalia was, as he often does, following the wisdom of our founding fathers.
As Franklin wisely warned against, we should not attempt to trade liberty for security, if we do we may end up with neither. And really, what security does this indefinite detention of Americans give us? The current Authorization for Use of Military Force confines the universe to persons implicated in the 9/11 attacks or who harbored those who were. The detainee provision would expand the universe to include any person said to be "part of" or "substantially" supportive of al-Qaida or Taliban. These terms are dangerously vague. More than a decade after 9/11, the military has been unable to define the earmarks of membership in or affiliation to either organization. Some say that to prevent another 9/11 attack we must fight terrorism with a war mentality and not treat potential attackers as criminals. For combatants captured on the battlefield, I tend to agree. But 9/11 didn't succeed because we granted the terrorists due process. 9/11 attacks did not succeed because al-Qaida was so formidable, but because of human error. The Defense Department withheld intelligence from the FBI. No warrants were denied. The warrants weren't requested. The FBI failed to act on repeated pleas from its field agents, agents who were in possession of laptop with information that might have prevented 9/11.
These are not failures of laws. They are not failures of procedures. They are failures of imperfect men and women in bloated bureaucracies. No amount of liberty sacrificed on the altar of the state will ever change that. A full accounting of our human failures by 9/11 Commission would have proven that enhanced cooperation between law enforcement and the intelligence community, not military action or vandalizing liberty at home, is the key to thwarting international terrorism. We should not have to sacrifice our Liberty to be safe. We cannot allow the rules to change to fit the whims of those in power. The rules, the binding chains of our constitution were written so that it didn't MATTER who was in power. In fact, they were written to protect us and our rights, from those who hold power without good intentions. We are not governed by saints or angels. Our constitution allows for that. This bill does not. Finally, the detainee provisions of the defense authorization bill do another grave harm to freedom: they imply perpetual war for the first time in the history of the United States.
No benchmarks are established that would ever terminate the conflict with al-Qaida, Taliban, or other foreign terrorist organizations. In fact, this bill explicitly states that no part of this bill is to imply any restriction on the authorization to use force. No congressional review is allowed or imagined. No victory is defined. No peace is possible if victory is made impossible by definition. To disavow the idea that the exclusive congressional power to declare war somehow allows the President to continue war forever at whim, I will also be offering an amendment this week to de-authorize the Iraq War. Use of military force must begin in congress with its authorization. And it should end in congress with its termination. Congress should not be ignored or an afterthought in these matters, and must reclaim its constitutional duties. The detainee provisions ask us to give up consist rights as an emergency or exigency but make no room for expiration. Perhaps the Emergency Law in Egypt began with good intentions in 1958 but somehow it came to be hated, to be despised with such vigor that protesters chose to burn themselves alive rather allow continuation of indefinite detention.
Today, someone must stand up for the rights of the American people to be free. We must stand up to tyranny disguised as security. I urge my colleagues to reject the language on detainees in this bill, and to support amendments to strip these provisions from the defense bill.
Thanks to Rand Paul's attacks on the original NDAA, an amendment was attached to the Senate version which stated "an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States unless an act of Congress expressly authorizes such detention." But the conference committee headed by John McCain stripped that portion from the final version, a final version that will likely be signed by Obama if passed.
We all need to support Rand Paul in this fight and call our representatives so they can stop this infinite detention bill.