Saying that The National Defense Authorization Act for Fiscal Year 2012 impinges on fundamental rights that are a core component of life in a constitutional democracy and key to the Boston Bar Association’s (BBA) mission of access to justice, BBA President Lisa C. Goodheart today sent a letter to President Obama, imploring him to veto the legislation. In her letter she states:
On behalf of the Boston Bar Association, I write to urge you to veto the National Defense Authorization Act for Fiscal Year 2012 (“NDAA”). A veto is appropriate because the detention provisions of the NDAA violate fundamental constitutional principles and are an affront to our nation’s proud history of adherence to the rule of law. The Boston Bar Association, which traces its origins to meetings convened by our nation’s second President, John Adams, and is the oldest bar association in the United States, urges this veto on the basis of its longstanding commitment to basic principles of access to justice.
You and members of your Administration have stated that you oppose Congressional efforts to enact legislation that undermines our national security, unnecessarily weakens counterterrorism efforts, and impinges on due process and civil liberties protections that have successfully governed this country for over 200 years. Regrettably, the detention provisions of the NDAA do all of those things – including allowing United States citizens to be held indefinitely without charge or trial. While Congress altered the language of those provisions in the final bill sent to you in an apparent attempt to appear to address these serious concerns, these provisions remain unconstitutional, unworkable and antithetical to our nation’s values and basic principles. Because they threaten the most fundamental and important aspects of our legal system and our form of government, we ask that you reject these provisions and veto the NDAA.
Section 1021 authorizes the United States military to indefinitely detain persons, including U.S. citizens, without charge or trial if they are believed to be a part of or substantially supportive of suspected terrorist groups or undefined “associated forces” engaged in hostilities against the United States, even if such persons have not themselves engaged in hostile or terrorist activity. See Section 1021(a) and (b). Section 1021 starkly departs from very important protections that historically have been provided to all American citizens. These include the Posse Comitatus Act of 1878, 18 U.S.C. § 1385, which was passed to safeguard against martial law and the use of the United States military to supplant the authority of state and federal civilian law enforcement; and more recently, the Non-Detention Act of 1971, which provides, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
Equally problematic is that under both Sections 1021 and 1022, the U.S. military is allowed to detain U.S. citizens and non-citizens “pending disposition under the law of war.” “Disposition under the law of war” is in turn defined to include long-term detention without trial until “the end of hostilities,” prosecution before a military commission, prosecution in an alternative court, or transfer to a foreign country. This authority represents a significant and harmful departure from the rule of law and our system of governance. Under this authorizing language, even U.S. citizens may be held in military custody indefinitely or prosecuted by military prosecutors in a military tribunal, instead of facing prosecution by the U.S. Department of Justice in an Article III federal court. Allowing this avoidance of the federal courts, which have successfully handled hundreds of terrorism-related prosecutions, both violates our country’s separation of power principles and weakens our government’s ability to investigate and successfully prosecute terrorists. This provision needlessly and irresponsibly enables the circumvention of a proven judicial system that is uniquely qualified to oversee prosecutions of terrorist suspects and maintain a lawful system of investigation, prosecution and adjudication.
Finally, Section 1028 establishes a permanent and onerous certification requirement that will substantially impede the transfer from Guantanamo Bay of detainees who have been cleared of wrongdoing to foreign countries willing to accept them for resettlement or repatriation. This certification requirement arbitrarily curbs the Executive Branch’s ability to deal with detainees in the manner it deems most appropriate. Further, by conditioning the use of funds to transfer a detainee on compliance with a burdensome certification requirement, Section 1028 will operate to further prolong the detention of innocent individuals who have already been cleared of any wrongdoing. In addition to the serious risk that innocent individuals who will not face prosecution will continue to be held, perhaps indefinitely, the certification requirement intrudes on the Executive Branch’s authority and discretion on matters of foreign policy and national security.
We are now a few weeks away from the 70th anniversary of the date of the Executive Order that led to the deeply troubling round-up and internment of over 120,000 Japanese-Americans on American soil. Our country learned from that grave injustice and from similar transgressions made during the McCarthy era, and we now look back with regret on those episodes in our history. The Boston Bar Association believes that the NDAA’s detention provisions undermine and seriously harm our nation’s values and system of government, and if enacted, will someday be viewed with similar regret. We urge you to veto an NDAA that contains such provisions.
Thank you very much for your consideration of the views expressed in this letter.