Whoa, Did Something Die in Here? Oh, It Was Freedom

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While you weren't looking, those hilarious pranksters in Congress passed the National Defense Authorization Act, which among other things authorizes the military to detain U.S. citizens arrested in this country "without trial until the end of the hostilities authorized by the Authorization for Use of Military Force," meaning until the "War on Terror" is over, meaning never.

That's seriously what just happened.

I don't want you to think your representatives took a collective dump on the Sixth Amendment without talking it over first, because they did debate a little before voting to end the Republic. In particular, they discussed whether the indefinite-military-detention provision really applied to citizens, because it wasn't clear as drafted. Seems like it would have been pretty easy to make clear that it didn't apply to citizens if that's what you wanted, maybe by adding something like, "the authority granted by this section shall not extend to American citizens," but I'm no legislator. Your Supreme Court has held that it is okay to detain a citizen forever if arrested overseas, you may recall, and if you enjoyed that then you'll love this bill, which extends that to citizens arrested in the U.S. That is, as Lindsay Graham conceded on the Senate floor, this bill makes the homeland a "battlefield" where the laws of war apply.

Under Section 1031 of the bill, the military is authorized to detain "covered persons" under the law of war, and you are "covered" if you were connected to 9/11 or have "substantially supported" anybody who was. Under 1031(c), a covered person may be held indefinitely. The debate was over 1032, "Requirement for Military Custody," which required that detainees be held by the military (as 1031 authorized). Did that cover citizens, some cared enough to ask? The end result was that 1032(b) now provides that "[t]he requirement to detain a person in military custody … does not extend to citizens of the United States." Feel better? Don't. All that says is that military detention isn't required. It's still authorized.

But wait, you say, I'm not a "covered person" because I'm not a terrorist and I totally think 9/11 sucked. Well, of course I believe you, but how will you prove that, person in military custody? At your trial? I see. Well, you can either have a military tribunal now or a trial when the War on Terror is over. In America we give you the freedom to choose!

Finally, this is not about trusting the military (which may not even want this power) or the government not to make you disappear. It's about the fact that some dudes spent a lot of time in July in a room that wasn't even air-conditioned to write up a constitution, the point of which I thought was to emphasize the idea that we shouldn't have to trust the government – we follow the rule of law. I like Ben Franklin too much to think he sweated for nothing. (And you know he sweated like a pig.)

Speaking of constitutions, the Sixth Amendment says this:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Emphasis added. They weren't too good at capitalization but they got a lot of other things right.