When President Obama signed the National Defense Authorization Act into law on Dec. 31, the event was largely overlooked by the corporate news media. The bill authorized $662 billion for military personnel, weapons systems, the war in Afghanistan, national security programs in the Energy Department and other items for the fiscal year beginning Oct. 1.
The most controversial provision in the bill affirmed the president’s authority to indefinitely detain suspected terrorists. That raised alarms among those who believe the War on Terror does not override the need to protect civil liberties. But the government has been indefinitely detaining suspected terrorists ever since the September 11, 2001 attacks, so many news editors may not have detected much news in the defense authorization bill’s affirmation of those detention powers.
However, media that noticed the detention provision often misreported it. Many commentators confused the final bill with earlier House and Senate versions that threatened to mandate indefinite military detention of terror suspects, including citizens captured on US soil, and threatened to block the president’s discretion to investigate and prosecute terror suspects.
The defense bill affirmed the president’s authority to detain, via the armed forces, any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,” and anyone who commits a “belligerent act” against the US or its allies, under the law of war, “without trial, until the end of hostilities authorized by the [Authorization for Use of Military Force].”
President Obama had threatened to veto earlier versions of the bill that threatened to limit the administration’s ability to prosecute terror suspects in federal courts, but after a Senate-House compromise ruled out limitation of the president’s authority and removed the requirement that suspected terrorists arrested in the US be detained indefinitely in military jails, the White House dropped the veto threat … //
… The right to challenge detention is one of the most basic rights enshrined in the Constitution. Article 1, Section 9 declares, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In Ex Parte Milligan, the Supreme Court in 1866 declared that even during the Civil War the suspension of the writ by Congress did not empower the president to try citizens before military tribunals as long as civil courts were open and operational.
Unfortunately, that hasn’t stopped presidents and Congresses from trying to fudge civil liberties when they feared enemy attacks.
Still, the writ has proven durable. In Hamdi v. Rumsfeld, eight justices agreed in 2004 that a US national captured during the 2001 invasion of Afghanistan could not be held in military detention indefinitely without basic due process protections. In Boumediene vs. Bush, the Court voted 5-4 in 2008 that foreign prisoners at Guantanamo have a constitutional right to challenge their continued detention in federal court.
Doing away with the right to habeas corpus would be a big lift even for the hacks on this Supreme Court — but the replacement of conservative Justice Anthony Kennedy or any of the more liberal justices on the Court could tilt the balance under a Republican administration to render the Bill of Rights a dead letter. That is why, even if you think Obama has betrayed progressive principles, progressive Americans can’t afford to let any of the Republican candidates reach the White House and send a shredder to the Supreme Court. That prospect should scare you. – JMC. (full long text).