E ach year, the United States Department of Defense budget and expenditures are approved by Congress, which must pass a National Defense Authorization Act in order to fund the DoD.
The most recent bill, however, the National Defense Authorization Act for Fiscal Year 2012, shocked many by containing an extraordinary provision allowing for the → indefinite detention without trial of anyone even suspected of providing support to individuals or groups identified as terrorists.
Although this represents little change from the US government’s modus operandi in waging the so-called war on terror, many were amazed to discover that this provision specifically applies to American citizens, who can now be detained by American military personnel anywhere in the world, including on US soil, and held indefinitely without trial.
Perhaps it is not surprising that President Obama chose New Year’s Eve as the date to sign the NDAA, as the revelry of the holiday predictably distracted Americans from the event. Particularly remarkable is the fact that the legislation has been almost universally identified as an overt act of tyranny by → commentators of all → political stripes, perhaps most importantly from → sources that have traditionally defended the actions of Obama and his administration.
Now, on the heels of the NDAA, a new bill is making its way through Congress: the → Enemy Expatriation Act that would make the controversy about the NDAA null and void by simply stripping Americans of their American citizenship, should they be accused of associating with government-deemed terrorist organizations.
What the outrage over the NDAA and now the Enemy Expatriation Act, reveal, however, is not that Obama or the current members of the House are suddenly taking the American government in a startling new direction, but merely that they are in fact continuing to pursue a coordinated policy agenda that has persisted through administration after administration on both the left and right sides of the political aisle for decades.
In 1864, during the American civil war, Lambdin P. Milligan and four others were sentenced to death by a military court after they were found guilty of planning to overthrow the state governments of Indiana, Michigan, and Ohio. The case reached the Supreme Court after the war ended, where it was found to be unconstitutional for US citizens to be tried in military tribunals as long as civilian courts were operating.
This precedent remained in tact for almost a century, with the Posse Comitatus Act of 1878 further delineating the boundary between the military and civilians by barring US military from engaging in civil police actions except by act of congress.
In 1942, however, the Supreme Court ruled on Ex Parte Quirin, a case involving the detention of eight German saboteurs during World War II and their trial as civilians in a military tribunal. The court ruled that the eight men, one of whom was a US citizen, could be tried as “unlawful combatants” in the war, a status applying to civilians who engage in armed conflict during times of war.
Unsurprisingly, it is this Ex Parte Quirin decision allowing for the military detention of civilians, not the Ex Parte Milligan precedent, which both the Bush and Obama administrations have relied on to try to assert their authority to detain civilians as unlawful combatants in the so-called war on terror.
In the immediate wake of the 9/11 attacks, Congress passed an → Authorization for Use of Military Force which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks.” Less than two months later, Bush invoked that authorization to issue a Military Order declaring that individuals detained in the war on terror be tried in military tribunals.
The administration immediately began applying this order to detainees in Afghanistan, regardless of affiliation.
The practice of detaining these “enemy combatants” at Guantanamo Bay and other military detention centers has been challenged repeatedly in the courts. When the Supreme Court finally ruled in → Hamdan v. Rumsfeld that the detainees could not be held as unlawful enemy combatants but had to be held as prisoners of war in accordance with the Geneva Conventions, Congress passed the → Military Commissions Act of 2006 specifically authorizing military commissions for the detainees.
In 2008, the Supreme Court → ruled that Guantanamo prisoners were entitled to the US justice system, but in 2009, Obama Attorney General Holder and Solicitor General Kagan → testified that they believed the government could detain combatants in accordance with the laws of war, thus sidestepping the issue of determining a prisoner’s status or their right to trial.
Now the NDAA of 2012 seems to extend all of these precedents and provisions to US citizens. This comes in addition to Peace Prize laureate Obama’s stunning declaration that he has the → right to kill American civilians anywhere in the world, without so much as a trial.
Perhaps most worryingly of all, when Obama expressed reservations about the NDAA, it was not because he as a Constitutional scholar felt the idea of using the military to detain American citizens on American soil was an unconscionable abrogation of everything the US constitution and Bill of Rights stood for, but because he felt that the 2001 Authorization for Use of Military Force had → already granted him this power as supposed Commander-in-Chief in the supposed War on Terror, which has never actually been declared.
Now, many are asking what can be done to prevent this seemingly inevitable slide into overt military control over American citizens and others around the globe.
One voice providing an answer to this question is Stewart Rhodes, a Yale Law graduate and constitutional law scholar who founded → Oath Keepers, an organization dedicated to instructing American police and military personnel about the nature of their oath to uphold the constitution, and how that oath precludes them in participating in acts that clearly violate the constitution.
Stewart Rhodes appeared on Corbett Report Radio → last week to talk about the history of the use of “enemy combatant status” as a legal smokescreen to violate the Bill of Rights, and how citizens can work to reverse the damage that has already been done by the passing of this legislation.
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