Things always get worse before they get better

By » Tue, December 20 2011

These guys are extreme, but they’re not wrong.

Article I, section 9 of the United States Constitution:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

Before the Bill of Rights was even really a thing, when there was just the Supreme Law, those were the specific and only secured rights of the People. Well, that and this:

Congress shall… promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

IP law aside, before there was a Fourth, Fifth, Sixth, or Seventh Amendment, it had already been established that no one would ever be punished for a crime without trial, and that everyone would be allowed the right to a public trial in a timely manner, unless the country was at war, quashing a rebellion, or being invaded.

Yes, there is this new law that pretty much goes in the face of that.

Constitution of the United States page 1 Things always get worse before they get better

President Obama is facing a backlash from civil libertarians that is more widespread and intense than anything he’s yet seen. He has previously been subject to complaints about his war on whistleblowers, the humanitarian and strategic costs of his drone war, the illegality of the war he waged in Libya, his use of the state secrets privilege, his defense of Bush-era warrantless wiretapping, and his assertion of the power to kill American citizens accused of terrorism. But news that Obama plans to sign rather than veto a bill enshrining indefinite detention into U.S. law and failing to exempt American citizens is provoking unprecedented ire.

The significance of the backlash is perhaps best understood by looking at what people and organizations who supported Obama’s 2008 bid for the presidency are saying about his actions now. The head of the ACLU’s legislative office insisted that Obama is poised to damage ‘both his legacy and American’s reputation for upholding the rule of law,” and noted that “the last time Congress passed indefinite detention legislation was during the McCarthy era.’

But what if there were a silver lining?

Gitmo.

It’s insurmountably difficult to imagine yourself as a prisoner at Guantanamo Bay; you can sympathize with the people who have had their humanity stripped. But there has always been this buffer that we have all relied upon. What’s happening to those people is wrong, shit, I’m glad I’m not mistakable as one of them.

The National Defense Authorization Act (NDAA) does away with any of those barriers.  Now you, yes you, can qualify for indefinite detention just like those poor bastards in Gitmo.

This act is in direct conflict with the most basic of Constitutional law.  And if it gets signed into law, it will be challenged.  This will take time and petitioners, and money, but at some point, the Supreme Court will have to decide, what’s of greater importance: a stretch of legislation that’s as knee-jerk as the Second Gulf War or the foundation of our entire governance?

It’s unlikely that they’ll side with the former.  At least, I really hope so.

And if they do go along with the Constitution, then there’s gonna be case law that will inevitably support the release of those poor bastards in Gitmo.  Law that, in modern terms, defines that there is no doubt that people can be held without trial or warrant, no matter how egregious their charges.

Would you give up a little security to ensure the liberties of others?

That is to say, if this act gets signed into law, it will, in time, be tested by the Supreme Court. And lately, they’ve been pretty constitutionally conservative. It doesn’t seem likely, at least to me, that they would find themselves in accord with an act that is literally and explicitly prohibited in the Constitution.

So, yeah. The NDAA might finally shut down Gitmo. Sorta. This next bit said without comment.

I, <name>, do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

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