Commentary

Obama's Assault on the Constitution


By Reginald Johnson
Jan. 8, 2012


Like a lot of writers, I often feel torn about how to approach sensitive issues. I’ll get worked up about a certain subject and I just want to ‘let it rip’ and write with passion about how I feel. But more often than not, I take a step back and say, ‘I better be discreet here, and write a little more cautiously. It might come out wrong.’

This time, I haven’t lapsed into a discreet mood yet. I’m going to write what I feel.

Barack Obama is a fraud and should be impeached.

On Dec. 31, 2011 --- as most people were distracted and celebrating the onset of the new year --- Obama signed into law one of the most disgraceful and damaging pieces of legislation to ever cross a president’s desk.

The bill was the National Defense Authorization Act (NDAA), which was the outline of the military spending plan for the coming year. What was shocking about this bill was not the size of the defense spending plan (everybody knows it’s excessive). It was the inclusion in the measure wording that will allow the military to scoop up American citizens, throw them in jail and hold them there indefinitely without charge or trial, just on the suspicion of terrorism.

Allegedly this provision was put in to help prosecute the supposed still-vital ‘War on Terror,’ and is aimed at getting after al-Qaeda sympathizers, who just might happen to be American citizens. The new statute will give the military the flexibility to get after foreign terrorists or their supporters at home as well as abroad.

I don’t believe this was the reason for the bill, but more about that in a minute.

This provision, developed in secret in the U.S. Senate with the backing of the White House, makes a mockery of the most fundamental provisions of our Constitution and the Bill of Rights. The arbitrary detention law violates the Fifth Amendment’s provision that people can’t be locked up without due process; the Sixth Amendment’s right of all people facing incarceration to know the charges they face and have a speedy and public trial; and the Fourth Amendment’s guarantee that people be free from unreasonable seizure.

There’s serious question also as to whether the right of habeas corpus will apply to those citizens picked up and jailed. Habeas corpus, a fundamental right in American law that traces its origins back 800 years in England, allows a person detained to ask a judge or magistrate to review their case and determine if there are legal grounds for their detention.

Habeas corpus is enshrined in Section 9, Article 2 of the U.S. Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it.”

It is incredible that a person who is both a lawyer and a former professor of constitutional law, would sign onto this bill, but Obama did. The President maintained that he was concerned about the law’s wording on detention, and added a signing statement.

“I want to clarify, my Administration will not authorize the indefinite military detention without trial of American citizens…My administration will interpret section 1021 in a manner that any detention it authorizes complies with the Constitution, the laws of war and all other applicable law.

This statement (which actually sounds rather contradictory) was done purely for public relations. Obama knows that signing statements don’t have the force of law ---- statutes do. The new law clearly says the military can now lock up American citizens indefinitely, and Obama signed on.

If he was truly concerned about the legality of this provision, he could have easily vetoed the bill, or sent it back to Congress saying that ‘I’m ready to approve a defense authorization bill, but not with language allowing the military to arbitrarily arrest people. Drop this wording.’

If he had done that, he would have gotten solid support from the American people.

The truth is, the White House wanted this bill and was dishonest in its public statements. After it came out publicly that the detention provision was being discussed in the Senate as part of the defense bill, many liberals and even a few conservatives protested.

Obama came out and said he too, was concerned, and might veto the bill. Subsequently, there was debate over wording and a possible softening of the language on detention of citizens was considered. But it was a charade. U.S. Sen. Carl Levin, the Michigan Democrat who worked on the bill with Arizona Republican John McCain, disclosed on the floor of the Senate that the White House specifically said that language exempting American citizens from possible indefinite detention should not be removed.

The new law gives official legitimacy to military arrests and detention of citizens, something which the Bush administration had previously carried out after 911 and was roundly criticized for.

The statute allowing the military to take action domestically in the U.S is a sharp departure from standing U.S. law. The Posse Comitatus Act, passed in 1878, prohibits the use of the military domestically.

I don’t agree with some who’ve said that politics was the chief reason for the detention bill --- you know, the idea that Republicans and Democrats and the President are trying to look ‘tough on terror.’ This is more than ten years after 911, al-Qaeda is decimated and the Taliban is talking peace in Afghanistan. Where are the terrorists? Yes, there are some isolated acts of terrorism --- usually perpetrated by someone psychologically disturbed --- but this is really a law enforcement and intelligence issue. The idea that we have to give the military sweeping new powers to pick up U.S. citizens to stop terrorism is wholly unwarranted.

Unless, of course, you’re worried about something else --- problems at home. There is ferment at home --- economic ferment --- and I believe the elites are worried about this.

When you look at how fast the Occupy Wall Street movement swept the country as well as the Tea Party protests before that, it’s clear there’s a tremendous amount of discontent in our country. People see their standard of living slipping away, foreclosures are everywhere, layoffs abound and quality jobs are increasingly hard to find.

Meanwhile people look around, and they see a small group of the population living very well with huge incomes. Many of these people are at the top of big banks and investment firms that caused the economic problems that we are now in. And they see a morally corrupt Congress and Executive branch doing the bidding of the financial elites, providing massive taxpayer-funded bailouts, tax giveaways for the rich while at the same time slashing social benefit programs in the name of cutting the national debt.

So yes, there is anger in the land, and I believe people at the top in the business world, Congress, the White House and the Pentagon see this unrest as a threat. The detention law is aimed at scaring people and blunting a genuine populist movement.

Kevin Zeese, an attorney and activist with the Occupy Wall Street movement, said that the wording of the detention amendment may provide a legal basis for rounding up protesters. While the law says people, including American citizens linked to al-Qaeda or the Taliban can be picked up, it also says targets could be “associated forces” or people “engaged in hostilities” “in aid of a …organization or person.”

“There is a lot of flexibility in those words and when they apply --- no need for probable cause, a trial, jury verdict or sentencing --- just on suspicion, you get indefinite military detention,” Zeese wrote in a piece for Global Research (http://www.globalresearch.ca/index.php?context=va&aid=28188)

Already, Homeland Security had established that certain activists could be classed as terrorists. In 2004 Homeland Security had “defined several categories of potential ‘conspirators’ or ‘suspected terrorists’ including ‘foreign (Islamic) terrorists,’ ‘domestic radical groups,’ (anti-war and civil rights groups) and disgruntled employees’ (labor and union activists)….,” wrote Professor Michel Chossodovsky, also in a piece in Global Research about the detention law entitled, “The Inauguration of Police State USA, 2012,” (http://www.globalresearch.ca/index.php?context=va&aid=28441)

The signing of the detention bill is the latest assault on the Consitution and international law by the Obama administration. Previous to this, you had the administration fighting legal challenges to the government’s use of warrantless wiretapping, which began under Bush and clearly violates the Fourth Amendment.

The President has allowed for extra-judicial killings of Americans suspected of terrorism abroad, in violation of due process guarantees and the Eighth Amendment’s ban on cruel and unusual punishment.

Obama has authorized bombing attacks on sovereign countries that have not attacked the U.S., including Libya and Pakistan. These attacks constitute war crimes under international law.

When you look at the last three years, Obama’s record on the Constitution and international law has been --- astoundingly --- no better than George W. Bush’s record. A number of liberals and progressive groups, such as the Center for Constitutional Rights, called for Bush’s impeachment citing, in part, his backing for illegal wiretapping and use of indefinite detentions.

Where’s the accounting for Obama?

Although there has been harsh criticism of the detention law by progressives in blogs and on radio shows, most liberal pundits in the mainstream media, both in print and on television, have been silent on this issue. They seem to be more interested in covering the Republican Party nomination circus than covering the loss of fundamental rights for all Americans --- rights established more than 200 years ago by the nation’s founders.

Military detentions of citizens without charge or trial is the hallmark of dictatorships, not democracies.

Are we sleepwalking our way to fascism? It seems so.

As David Gespass, president of the National Lawyers Guild put it, “For a very long time the U.S. has been moving towards what I personally think of as fascist --- the integration of monopoly capital with state power, that’s combined with an increased repression at home and greater aggression around the world. I don’t think we’re there yet, but I do see that we’re going in that direction.” He added, “I think the (detention) act is a significant step in that direction.” (http://www.commondreams.org/headline/2011/12/30-8)