Defense Act sabotages our freedoms |

Defense Act sabotages our freedoms

Post Independent
Glenwood Springs, CO Colorado
As I See It

Disturbing news to start the new year: In a single act – the 2012 National Defense Authorization Act – the U.S. Senate introduced provisions that gravely threaten the civil liberties of American citizens. The act declares the entire United States to be a battlefield in the war on terrorism, and as such gives the U.S. military extraordinary powers.

Section 1031 requires the armed forces of the U.S. to detain any person who is deemed to be a part of or to have substantially supported al-Qaida, the Taliban, or associated forces that are engaged in hostilities against the U.S. or its coalition partners.

This includes any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. Such persons may be detained under the law of war without trial or legal counsel until the end of the hostilities – in other words, indefinitely.

So much for being innocent until proven guilty. So much for limited government.

The implications are monstrous, making U.S. citizens subject to military apprehension and detention anywhere in the world without burden of proof, even in their own country.

Peaceful protesters can be rounded up, declared potential terrorists or “suspicious,” and imprisoned for life without charges or legal recourse.

And, as in the discredited Sedition Act of 1798, any writer or newspaper (including yours truly and the Post Independent) could be silenced and detained indefinitely for criticizing any actions of the federal government with which they disagree, such as today’s column.

What is alarming about this legislation is that it was even considered by the Senate and the manner in which it was drafted. Created in secret by Sens. John McCain, R-Ariz., and Carl Levin, D-Mich., it was passed in a closed-door committee meeting without a single hearing.

An amendment proposed by Sen. Mark Udall, D-Colo., that would have exempted U.S. citizens and legal residents from the military detention provisions was struck down by a vote of 67-31. A subsequent amendment was adopted stating that the requirement to detain a person in military custody would not apply to U.S. citizens, but does not prohibit such detention.

The final form of the Senate Bill was passed, 93-7.

Just as alarming is the silence of the media, which has virtually ignored the threat to our civil liberties contained in this legislation. It’s as though it is a hot potato they are afraid to touch, instead of living up to their responsibility to expose such threats.

This legislation is far worse than the regrettable 1942 law under which 110,000 West Coast Japanese, a large percentage of whom were U.S. citizens, were declared “enemy aliens” and interned for the duration of World War II. And it is worse than the House Un-American Activities Committee witch hunts in the 1950s, in which people were blacklisted and had their careers destroyed by hearsay accusations, without identification of or the right to challenge their accusers.

How can this flagrant abrogation of our civil rights be prevented from becoming the law of the land? Obviously, the president could veto it, but the White House has indicated that is not going to happen, probably because the president does not want to be accused of being “soft on terrorists.”

The last resort is for the U.S. Supreme Court to declare the law unconstitutional because it violates the Sixth Amendment of the Constitution (part of the Bill of Rights).

It states: “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 in his defense.”

But the Supreme Court may never get to rule on a constitutional challenge to this Act because of the following Catch 22: In order to come before the Supreme Court, the plaintiff must have standing, meaning he must have sustained injury from the law he is appealing. But if he has not been detained, then he has not been injured, and therefore does not have standing. And if he has been detained, he is stripped of his legal rights and therefore denied any right to appeal his case.

– “As I See It” appears on the first and third Thursdays of the month. Hal Sundin lives in Glenwood Springs and is a retired environmental and structural engineer. Contact him at

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