Mission & Name
US Foreign Policy (Dr. El-Najjar's Articles)
The US Homeland Battlefield:
Congress's Assault on American Civil and Political
By Lawrence Davidson
Al-Jazeerah, CCUN, December 31, 2011
Congress attacks the constitution
Lawrence Davidson argues that the US Congress's latest
assault on civil and political rights – the Homeland Battlefield Bill – is
historically unique in that, rather than being a response to particular
conditions such as war and amorphous fears of foreign threats which is
reversed when the "threat" ended, it is potentially permanent.
The US Congress has
ended the year 2011 by assaulting the constitution. The attack came in the
form of the 2012 National Defence Appropriations Act (NDAA), which passed
both the House of Representatives (14 December) and the Senate (15 December)
by large margins despite having an attached provision (the "Homeland
Battlefield Bill") that allows the United States military to take into
custody and hold indefinitely without trial any American citizen designated
a "terrorist suspect".
As if to make sure that everyone knew just
what they were voting for, Senator Lindsey Graham, Republican from South
Carolina who supports the legislation, said on the Senate floor: "The
statement of authority to detain does apply to American citizens and it
designates the world as a battlefield, including the homeland." That means
US citizens designated terrorist suspects are stripped of their protections
under the constitution. They simply fall into a judicial black hole.
Ironically, Congress did this to the country on the 220th anniversary of the
Bill of Rights.
"How did we come to this place? Well, it took the joint
efforts of both parties and a country that has been lured
into a dangerous passivity by years of war rhetoric."
Professor Jonathan Turley, legal scholar
At first it seemed that President Barack Obama was prepared to veto the
bill so as to prevent this attack on citizen rights. But this proved to be
untrue. What Obama was really interested in was language that prevents the
military from interfering with the work of the FBI in cases of suspected
terrorism. Actually, this should add to our worries because the FBI has a
disturbing record of
manufacturing terrorists out of poor and disgruntled US citizens. Given
the numerous scams and entrapment scenarios the bureau runs, we will
probably see a macabre two-step dance where the FBI makes the terrorists and
the military takes them away, never to be seen again outside of Guantanamo
Bay. Guantanamo Bay has become Washington’s version of Devil’s Island.
Here are some
reactions to the Homeland Battlefield Bill:
1. Tom Malinowski of Human Rights Watch: "It’s something so radical that
it would have been considered crazy had it been pushed by the Bush
administration. It establishes precisely the kind of system that the United
States has consistently urged other countries to drop."
The odd thing about President Obama’s willingness to sign this bill and, as
Human Rights Watch notes, "go down in history as the president who enshrined
indefinite detention without trial in US law", is that the FBI, the CIA, the
director of National Intelligence, the attorney-general and the secretary of
defence, among others, all oppose it. The military in particular appear to
have no wish to destroy a 200-year tradition of non-interference in domestic
affairs. In fact,
according to Heather Huburt, the executive director of The National
Security Network, a non-profit organization focusing on national security,
"you can’t find any national security experts in favour of these
Rand Paul: "Really, what security does this indefinite detention of
Americans give us? The first and flawed premise, both here and in the badly
named Patriot Act, is that our pre-9/11 police powers were insufficient to
stop terrorism. This is simply not borne out by the facts."
addition, Paul points out that the present definition of a terrorist in US
law is broad to the point of meaninglessness. "There are laws on the books
that characterize who might be a terrorist: someone missing fingers on their
hands... Someone who has guns, someone who has ammunition that is
weatherproofed, someone who has more than seven days of food in their house
can be considered a potential terrorist."
3. Professor Jonathan
Turley, legal scholar,
"How did we come to this place? Well, it took the joint efforts of both
parties and a country that has been lured into a dangerous passivity by
years of war rhetoric."
Yet the president, faced with a large bipartisan
Congressional majority anxious to prove to the American people that it is as
willing as they to "give
up essential liberty to purchase a little temporary safety", and also
having been assured of a cooperative legal arrangement between the military
and the FBI, quickly jumped on the bandwagon. One can only assume that
nothing in the Homeland Battlefield Bill goes against Barack Obama’s
principles – whatever they may be.
The historical context
Before we are overrun by doom and gloom, it is best to put this situation in
historical context. Throughout US history there have been episodes when the
constitution was disregarded and citizens rights trampled on. For instance:
a) As early as 1798 with the Alien and Sedition Acts.
b) In 1830
when President Andrew Jackson ignored the Supreme Court and illegally
evicted the Cherokee of Georgia.
c) When the otherwise revered
Abraham Lincoln started to ignore due process and arrest and hold people
thought to be a danger to the union cause during the Civil War.
Woodrow Wilson, otherwise seen as making the "world safe for democracy",
instituted the questionable Espionage Act of 1917 and Sedition Act of 1918.
e) Followed by President Harding’s mostly illegal deportations during
the Red Scare of the early 1920s.
f) Then, of course, there was the
illegal incarceration of Japanese Americans during World War II
And, in the 1950s under Truman and Eisenhower, the US went through a second
Red Scare entailing blacklists, loyalty oaths and the McCarthy hearings.
There are a number of lessons we can drew from these episodes:
First – The party leaders and administrations that initiated these illegal
policies have been both "conservative" and "liberal." Many considered Andrew
Jackson, Woodrow Wilson and Abraham Lincoln to be quite progressive for
their time. The Federalists of 1798 and the McCarthyite Republicans of the
1950s were seen by many of their contemporaries as opportunistic
Second – Most of the historical attacks on
constitutional protections were situation-specific. That is, they were
responses to particular conditions such as war and amorphous fears of
foreign threats. These conditions allowed for the draconian actions of the
government. However, when the crisis (real or imagined) ended, policy swung
back toward a more centrist political orientation and rights were restored.
One might argue that this is what is happening now, that we are in one of
these crises modes, and the government is reacting in character by trashing
constitutional rights. I think that this could be a reasonable
interpretation, but for one troubling aspect of the present situation that
we will get to at the conclusion of this essay.
Third – The "average"
citizen is comfortable with (and indeed sometimes enthusiastic about) the
unconstitutional behaviour of the government. Thus, as Jonathan Turley put
it: "While the framers [of the constitution] would have likely expected
citizens [to be] in the streets defending their freedoms, this measure [the
Homeland Battlefield Bill] was greeted with a shrug and a yawn by most
citizens and reporters."
Why would this be so? Keep in mind that the
average citizen does not often use his or her rights and sometimes is
unaware of what they are. The majority is also normally under the influence
of the government and its allied media. To wit, Turley’s "years of war
rhetoric". Even when the claims of these influential sources are exaggerated
and distorted, the majority has no way to know this.
is in need of fact-checkers, a role once, but no longer, played by the
media. Today’s fact-checkers are a stand alone vocal minority who contest
the exaggerated claims of the government and media, and the abuse of power
that often goes along with them. Yet the majority is uncomfortable with
fact-checkers and their negative revelations, particularly when they appear
outside of traditional contexts (like the media). It is easy for the
government to isolate the nay sayers and persuade people that the critics
are part of the problem, allied with the enemy and in need of suppression.
Therefore, it is fact-checkers who are in great need of the protection of
the Bill of Rights. The truth is that in many places, including the US, it
is dangerous to tell the truth. Just look at the cases of Bradley Manning
and Julian Assange.
Conclusion (the troubling aspect)
Unfortunately, there may be something historically different about the
present crisis. It is potentially endless. Terrorism is the poor man’s form
of revenge to prevailing economic, political and military domination (direct
or by proxy) that is global and ongoing. Anyone with a little technical
skill and a lot of determination can exact this kind of revenge. And, as
long as that happens, there will be opportunistic and/or paranoid domestic
elements that will use such incidents to isolate, harass and persecute
critics of government war-on-terror policies.
If this prognosis is
accurate, the only thing that can be expected to end this struggle is a
revolutionary change in relations between the West, and particularly the
United States, and the non-Western world, particularly the Middle East. No
one should be holding their breath as far as this prospect goes. As it
stands now, the best one can hope for are pauses in this struggle.
This is a depressing prospect, but it does not relieve anyone interested in
the maintenance of political and civil rights from carrying on a determined
resistance to their erosion. It is only by vigorously defending and using
such rights as free speech that we can hope to sustain the space necessary
for critical voices. Think of such rights as muscles. If you don’t want them
to atrophy, you have to use them. So, if you want to keep your rights, get
out there and use them.