Policymaking in the fog of war can lead to regrettable choices. One need only consider the internment of Japanese-Americans during World War II or passage of the Alien and Sedition Acts of 1798. Ten years ago, in the anxious days after the attacks of 9/11, we witnessed a rush to implement policies like the PATRIOT Act that sacrificed individual liberty for promises of greater security. Future generations may well judge these tradeoffs with some understanding because of the wartime cauldron in which they were made.
But what will we say to future generations if the National Defense Authorization Act of 2012 (NDAA) becomes law? That legislation contains a provision that authorizes the president to indefinitely imprison, without a criminal charge or court hearing, any suspected terrorist who is captured within the United States -- including American citizens.
It is difficult to imagine a greater attack on one of the most basic of individual freedoms protected by our great Constitution. As Justice Antonin Scalia wrote in his dissenting opinion in Hamdi v. Rumsfeld (2004), "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."
If members of Congress choose -- for the first time in our nation's history -- to codify a system of indefinite detention without charge and authorize such confinement on the basis of suspicion alone, they will do so with their eyes wide open. The attacks of 9/11 are now more than ten years old. Although our troops are still engaged in Afghanistan, the fog of war has long since lifted. While we have encountered new threats over the past decade, we have handled those without any suggestion that the president (or military) was lacking the power necessary to address them.
On the contrary, our federal law enforcement has proven time and again that it is capable of playing a vital role in bringing terrorists to justice. The best-known examples help prove the point: the "shoe bomber," Richard Reid, and "Times Square bomber," Faisal Shahzad, are both serving life sentences in maximum-security federal penitentiaries; Umar Farouk Abdulmutallab, the "underwear bomber," has been found guilty in federal court and is awaiting sentencing. Overall, more than 400 terrorists have been tried in federal courts, with many of the guilty ones receiving lengthy prison sentences. Claims that these prisoners would become martyrs, or that the facilities that held them would become terrorist targets, have proven unfounded.
Similarly unfounded is the notion that our counterterrorism and military experts need this authority to keep the homeland safe. Much of the current national security establishment have expressed opposition to the over-militarization of counterterrorism activities, including: Secretary of Defense Leon Panetta; James Clapper, the director of national intelligence; Robert Mueller III, the director of the FBI; David Petraeus, the director of the CIA; White House Advisor for Counterterrorism John Brennan; Lisa Monaco, the assistant attorney general for national security; and Jeh Johnson, general counsel for the Department of Defense.
This resistance is not confined to the Obama administration. Senior national security and law enforcement officials from recent Republican administrations, including former FBI director William S. Sessions, have also urged Congress to strike these dangerous provisions. In a letter sent to Congress last week, Judge Sessions wrote, "[E]nacting the NDAA without first removing the current detainee provisions could pose a genuine threat to our national security and would represent a sweeping and unnecessary departure from our constitutional tradition."
That constitutional tradition compels us to resist efforts by any branch of government to amass too much authority. We know that our fundamental freedoms, including the rights to due process and a jury trial, are safest when government power is divided and subject to checks and balances. Nevertheless, we recognize that there will always be those who, in Justice Scalia's words, "think it not only inevitable but entirely proper that liberty give way to security in times of national crisis... Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
We are in year ten of a battle to end the threat of terrorism. The buildings and property destroyed a decade ago have become the sites of monuments and memorials. Thanks to the expertise of our nation's counterterrorism and law enforcement communities -- from federal courts and prosecutors to first responders at all levels -- we have been spared additional attacks, despite the best efforts of those who wish to harm us.
Given this record, and the fact that our elected leaders have had ten years to develop constitutionally sound anti-terror policies, it is unconscionable that some of them would choose now to sacrifice the most basic of all liberties for the illusion of increased safety. If Congress insists on passing the NDAA with the objectionable detainee provisions currently in the bill, as it now appears prepared to do, President Obama must carry out his threat to veto it.
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