By Thomas McAdam
Talk about strange bedfellows! Rand Paul, Kentucky's Republican Junior Senator, found himself teamed up yesterday with Senate left-wing Democrats and the ACLU, in a failed attempt to insert an amendment into the massive National Defense Authorization Act, which would have limited the federal government's power to enforce martial law against American civilians.
Sixteen Democrats and an independent joined with Republicans to defeat an amendment by Sen. Mark Udall (D-Colo.) that would have killed the provision, voting it down with 60 against, and 38 for it; keeping in the controversial provision which allows the military to detain terrorism suspects on U.S. soil and hold them indefinitely without trial.
Senator Paul observed that the unamended law would mean that any American citizen suspected of aiding terrorism would get just one hearing, where the military could assert that the person is a suspected terrorist, and then he could be locked up for life, without ever being formally charged. "I'm very, very, concerned about having U.S. citizens sent to Guantanamo Bay for indefinite detention," said Sen. Paul. Illinois Senator Mark Kirk was the only other Republican joining Sen. Paul in his support for the Udall amendment.
Republican Senator Lindsey Graham, of South Carolina--one of the staunchest opponents of the Udall amendment--had a different take on the need to empower the government to arrest and detain terrorism suspects: "(W)hen people take up arms against the United States and are captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity? They should not be read their Miranda Rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined al Qaeda and what they were going to do to all of us."
According to legal experts, the wording of the new National Defense Authorization Act effectively repeals the 1878 Posse Comitatus Act (18 U.S.C. § 1385), which limits the use of federal military personnel to enforce laws within the United States. The Act allows for the imposition of martial law only where specifically authorized by the United States Constitution (invasion, insurrection, etc.) or Act of Congress. Under the provisions of the unamended NDAA, the president will have the power to impose martial law, and thereby suspend the Writ of Habeas Corpus, on his own authority.
It remains to be seen if the Conference Committee, when reconciling the House and Senate versions of the NDAA, will delete the new provision allowing for military detention of American civilians. Further, there is a possibility that President Obama will veto the entire NDAA. In a Nov. 17 statement, the White House called the new provision an " unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats " The statement added, "(A)pplying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets."