United States of Homeland Security

President Obama has signed into law the National Defense Authorization Act for Fiscal Year 2012. The signing comes after weeks of equivocation and obfuscation, and a widespread reporting blackout in the major media.

At issue are sections 1031 and 1032, which, in somewhat ambiguous language, seem to provide for the indefinite detention of US citizens without trial, by the military if the government so chooses, if those citizens are classified as terrorists or as terrorist sympathizers.

When it came out of the Senate, the law (then S.1867) was accompanied by Feinstein amendment #1456, which states that the law shall not be "construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States."

This amendment, however, was a political maneuver to pacify opponents, while proponents believed they already had the ability in question with respect to the detention of US citizens classified as terrorists (which enabled the detention without trial of the US citizen Jose Padilla in 2002, after being classified as an "enemy combatant").

In signing the bill into law, President Obama issued a signing statement clarifying that this current Administration "will not authorize the indefinite military detention without trial of American citizens." This, of course, says nothing about future Administrations, which can reverse signing statements and executive orders at will.

Moreover, the sections in question are blatantly unconstitutional.

Article I Section 9 of the US Constitution says, "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."

The Constitution doesn't specify that habeas corpus applies only to citizens of the US, and British legal custom (the American revolutionists were ethnically British) reinforces the claim that this is an "inalienable right."

The Magna Carta says, "No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land." It says, "Freeman" not "subject."

By strengthening the ability of the government to choose by ad hoc action which system of justice applies to which detainees (i.e., the new military established by President George W. Bush under the Military Commissions Act of 2006; or civilian courts), this bill flies in the face of the principle of rule of law, and therefore exemplifies arbitrary government.

In 1944, free market theorist Friedrich Hayek wrote:

"while every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action... If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal -- but its actions are certainly not subject to the Rule of Law. By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable....The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law and excludes legislation either directly aimed at particular people or at enabling anybody to use the coercive power of the state for the purpose of such discrimination. It means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used."

Language like that contained in this law has no place in American jurisprudence, and President Obama, as a "constitutional scholar" ought to know better.

I guess it takes a constitutional scholar to most effectively dismantle the constitution.

The government's next step is likely to start using this law very selectively and carefully establishing precedent. Then, gradually, the scope of the law will be extended, using legal theories like those advanced by John Yoo under Bush II, or though a classified legal interpretation such as that described by Senators Mark Udall and Ron Wyden.

But Obama is the lesser of two evils, right?