That appears to be the current position of the Senate, according to many legal analysts and some in Congress, unless President Obama vetoes the National Defense Authorization Act (NDAA) passed on Tuesday.
Two provisions that have survived heated debate in the massive NDAA, also called Senate Bill 1867, are causing these concerns. Once the House and Senate bills are reconciled, they will head to the President's desk to be signed into law, or struck down with the veto pen.
The NDAA bill, which passed 97-3 in the Senate, would fund a huge swathe of military operations for 2012. But tucked into the bill are provisions dealing with detention of terrorism suspects that cut deeply into the Constitutionally-guaranteed rights of U.S. citizens in the post-9/11 era. Now referred to by some as the "indefinite detention bill," it has caused a firestorm of controversy from disparate corners of government and American society.
The controversial components of the bill can be broken down into two parts. The first questionable portion of the bill (section 1031) explicitly exempts U.S. citizens, and according to Slate, states that the government would be mandated to place into military custody:
“any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies.. [and] would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.”
The second provision (section 1032), however, does not include an exemption for U.S. citizens, and would give the government "the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial."
Outside of Congress, there has been widespread outrage that due process rights of U.S. citizens and the presumption of innocence before trial could become official casualties of "the war on terror." The bipartisan eruption at the language in the bill, according to the Hill, is so severe and sweeping that even:
"The Obama administration has threatened to veto the Pentagon policy bill because it argues that the legislation places burdensome restrictions on federal law enforcement. [FBI Director] Mueller, Defense Secretary Leon Panetta and Director of National Intelligence James Clapper all publicly opposed the provisions in the Senate bill last month before it passed."
On top of that, libertarian and Tea Party favorite Rand Paul has come out strongly against the bill, and even protestors of Occupy Wall Street and the Hacker collective known as "Anonymous" have expressed outrage under the assumption the NDAA could be used against them.
Here is a video of Senator Rand Paul making the case on the floor of Congress that the Senate-passed NDAA Bill would be a grave threat to the civil liberties of all Americans:
The President, on the other hand, explained that his opposition to the bill comes from his fear that it could constrain his executive authority to deal with terrorists, which as Commander-in-Chief, currently allows him to determine whether a civilian or military trial will be held.
But the language in the NDAA would take that discretion out of the Executive's hands, and does appear to open the door to indefinite military detention of anyone suspected by the U.S. government of being a member of Al Qaeda, the Taliban, its affiliates, or assisting any of those groups, until the end of hostilities.
As Senator Paul stated, the likely timeframe covered by this bill may threaten due process even more than previous suspensions of Constitutional protections (such as Lincoln's suspension of habeus corpus during the Civil War) because the country is engaged in a decade-long war that is unlikely to end at any point soon.
If the NDAA is allowed to eliminate a Constitutional right as part of the "war on terror," it may never be returned as the struggle against extremism will be a never-ending battle.
To placate critics of the bill, Senator Diane Feinstein added an Amendment to the NDAA that leaves it even more open-ended. The Feinstein amendment, according to the Lawfare blog:
"Offered a fall-back... altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted...the sponsors can read Hamdi [v. Rumsfeld] and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide."
So even with the Feinstein Amendment, there appears to be much left undecided. When the next terrorist attack occurs, if a U.S. citizen is captured on U.S. soil, the courts will have to revisit this problem and issue an entirely new ruling. But if the NDAA is passed as is, the right to due process will have been overridden by Washington's stated desire to fight terrorism.
As the federal government struggles to balance liberty and security in an era of grave and asymmetric terrorist threats, many Americans are forced to consider the question:
Has the "war on terror" finally put one tear too many in the Constitution?