America changed as the New Year stumbled across the threshold, but the big shift didn’t get much press, which is easy to understand. Can there be a deader news day than a New Year’s Eve that falls on a weekend? Besides, alive or dead, habeas corpus has never been a topic to set news editors on fire.
The change came with the whisper of Barack Obama’s pen, as he signed into law the National Defense Authorization Act (NDAA), the annual ratification of military Keynesianism—$662 billion this time—which has been our national policy since World War II bailed out the New Deal.
Sacrificial offerings to the Pentagon aren’t news. But this time, snugly ensconced in the NDAA came ratification by legal statute of the exposure of US citizens to arbitrary arrest without subsequent benefit of counsel, and to possible torture and imprisonment sine die. Goodbye, habeas corpus.
We’re talking here about citizens within the borders of the United States, not sitting in a hotel or out driving in some foreign land. In the latter case, as the late Anwar al-Awlaki’s incineration in Yemen bore witness a few months ago, the well-being or summary demise of a US citizen is contingent upon a secret determination of the president as to whether the aforementioned citizen is waging a war of terror on the United States. If the answer is in the affirmative, the citizen can be killed on the president’s say-so without further ado.
We’re also most emphatically not talking about non-US citizens or possibly even legal residents (though I’d urge green card holders to file for citizenship ASAP). Noncitizens get thrown in the Supermax without a prayer of having a lawyer. Under the terms of the NDAA a suspect’s seizure by the military is a “requirement” if the suspect is deemed to have been “substantially supporting” Al Qaeda, the Taliban or “associated forces.”
By the military? Until December 31 the Posse Comitatus Act of 1878 limited the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of the land. No longer. The NDAA renders the Posse Comitatus Act a dead letter.
Connoisseurs of subversion and anti-terror laws well know that “associated forces” can mean anything. See, for example, one of the definitions of “enemy combatants” minted after 2001: “associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Like those “memory pillows” I saw on discount in Macy’s on New Year’s Day, the phrase “directly supported” will adjust itself to the whim of any ingenious prosecutor.