Washington Debates Constitutional Rights During the War on Terror

WASHINGTON – Several lawmakers have expressed strong interest in protecting the constitutional rights of U.S. citizens during the war on terror, as efforts in Congress continue to revisit a resolution passed in the aftermath of the Sept. 11 terrorist attacks.

The House Committee on the Judiciary recently held a hearing delving into the status of citzens’ rights. In his opening statement, Chairman Bob Goodlatte (R-Va) underlined the 2012 National Defense Authorization Act (NDAA) and the Authorization for Use of Military Force (AUMF) after 9/11 as two important pieces of legislation that could be interpreted as permitting the indefinite detention of American citizens without trial if they participated in any terrorist activity.

Goodlatte said he wants to make clear that U.S. citizens apprehended and detained in the United States should be tried at a court established under Article III of the Constitution and that such trial and proceedings have “all the due process as provided for under the Constitution of the United States.”

The Virginia representative also said he joins several of his colleagues on both sides of the aisle in their concern over the notion that an American citizen apprehended on American soil can potentially be held indefinitely without trial.

“I am not persuaded by those who say that in practice this administration and future administrations will not exercise their authority to indefinitely detain U.S. citizens who have been apprehended in the United States. The mere notion that this authority exists is troubling in and of itself and I believe that this body should make clear that citizens of this nation cannot be detained without receiving all of their due process rights in an Article III court,” said Goodlatte.

Congress enacted the Authorization for the Use of Military Force (AUMF) in September 2011. The law empowered the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the Sept. 11 terrorist attacks. The AUMF gave the Pentagon and U.S. intelligence agencies unprecedented authority to wage war against al-Qaeda and other militant groups. The legislation also established a basis for a wider range of controversial counterterrorism tactics for the military.

The NDAA, a federal law specifying the budget and expenditures of the Department of Defense, includes every year other provisions outlining how that money will be spent. In 2012, the NDAA included a provision that reaffirmed the federal government’s ability to detain U.S. citizens without charge or due process.

Committee ranking member Rep. John Conyers (D-Mich.), who quoted James Madison to emphasize his view about the effect of continual war on U.S. defense policy, also expressed his concern about how easily some members of Congress have been willing to treat suspected terrorists as enemy combatants instead of criminal offenders.

Conyers cited Ex parte Milligan – a Supreme Court ruling that says the application of military tribunals to citizens when civilian courts are still operating is unconstitutional – as the basis for trying terrorism suspects in civilian courts.

“No weapon in our counterterrorism arsenal is more effective than our civilian criminal courts,” said Conyers. “By adhering to Milligan, we both secure our nation and give appropriate deference to the rule of law. There may be limited exceptions to [this] rule, but they should be used sparingly and only when expressly permitted by Congress.”