Abridging the Sixth Amendment

(2 pm. – promoted by ek hornbeck)

Cross posted from The Stars Hollow Gazette

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Tonight the US Senate has abridged that amendment with the passage of the National Defense Authorization Act that contains a provision that would allow for the indefinite detention of American civilians arrested on American soil suspected of being “enemy combatants” by a vote of 93 -7. It allows for anyone alleged to be an “enemy combatant” anywhere in the world sent to military prisons indefinitely without even being charged with a crime.

The bill sponsored by Sen. Carl Levin (D-MI) and Sen. John McCain (R-AZ) was drafted in secret and passed out of committee without a single hearing.

Glen Greenwald at Salon highlights the most alarming aspects of the bill:

   (1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);

   (2) renews the 2001 Authorization to Use Military Force (AUMF) with more expansive language: to allow force (and military detention) against not only those who perpetrated the 9/11 attacks and countries which harbored them, but also anyone who “substantially supports” Al Qaeda, the Taliban or “associated forces” (Sec. 1031); and,

   (3) imposes new restrictions on the U.S. Government’s ability to transfer detainees out of Guantanamo (Secs. 1033-35). [..]

The Levin/McCain bill would require that all accused Terrorists be held in military detention and not be charged in a civilian court – including those apprehended on U.S. soil – with two caveats: (1) it exempts U.S. citizens and legal residents from this mandate, for whom military detention would still be optional (i.e., in the discretion of the Executive Branch); and (2) it allows the Executive Branch to issue a waiver if it wants to charge an accused Terrorist in the civilian system.

As per emptywheel, Sen. Diane Feinstein (D-CA) proposed an amendment (pdf) that would have removed the language but it was defeated by a vote of 45 – 55.

Some has forgotten to tell the Senate that Osama bun Laden is dead, we have killed virtually all of Al Qaeda’s leadership and the group is “operationally ineffective” in the Afghan-Pakistan and region and that we are near completion of withdrawal from Iraq and beginning to draw down the troops in Afghanistan. But the absurd view from war hawk, conservatives like Sen. Lindsay Graham (R-SC) who believe Al Qaeda is a threat that requires trashing the Constitution, as Graham said:

“The threats we face as a nation are growing. Homegrown terrorism is going to become a greater reality, and we need to have tools,” Graham argued. “Law enforcement is one tool, but in some cases holding people who have decided to help al Qaeda and turn on the rest of us and try to kill us so we can hold them long enough to interrogate them to find out what they’re up to makes sense.”

“When you hold somebody under the criminal justice system you have to read them their rights right off the bat,” Graham added. “Under the law of war you don’t because the purpose is to gather intelligence. We need that tool now as much as any time, including World War II.”

That is most chilling statement regarding to our civil liberties. This is from the same man who supported President Obama’s due-process-free assassination of Anwar Awlaki that totally disregarded Article 3, Section 3 of the Constitution which provides that nobody can be punished for treason without heightened due process requirements being met.

It isn’t often that freshman Tea Party Sen. Rand Paul (R-KY) says something sensible but he wrote in the Washington Times defending the Sixth Amendment that the “war on terror doesn’t justify retreat on rights”:

James Madison, father of the Constitution, warned, “The means of defense against foreign danger historically have become instruments of tyranny at home.” Abraham Lincoln had similar thoughts, saying, “America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves.”

During war, there has always been a struggle to preserve constitutional liberties. During the Civil War, the right of habeas corpus was suspended. Newspapers were closed. Fortunately, those actions were reversed after the war.

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.

Will President Obama veto this bill as has been hinted? Not likely, since as Greenwald point out Obama has maintained that dozens of detainees would continue to be held indefinitely and that he planned“not to close, but simply to re-locate to Illinois, the Guantanamo system of indefinite, military detention.” While the President has expressed his opposition to the bill, his objection is that the matter of denying accused terrorists a civilian trial is not up to Congress but for the President alone to decide. In other words, the White House’s objections are grounded in broad theories of Executive Power.

While Greenwald may be willing to believe the White House is opposed to having the military detain and imprison U.S. citizens on U.S. soil, there are those who think President Obama is more concerned over who should get to decide which accused terrorist suspects are denied due process, not whether they should be.

Chipping away at our liberties. Frightening.