On December 31, 2011, with the President’s signing of the National Defense Authorization Act (NDAA), the writ of habeas corpus — a civil right so fundamental to Anglo-American common law history that it predates the Magna Carta — is voidable upon the command of the President of the United States.
The Bill of Rights has no exemption for “really bad people” or terrorists or even non-citizens. It is a key check on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. The NDAA attempts to justify abridging the Bill of Rights on the theory that rights are suspended in a time of war, and the entire Unites States is a battlefield in the War on Terror.
The NDAA absolves the President of the requirement of gathering and presenting to an impartial judge evidence probative of such evil associations. The mere suspicion of such suffices as a justification for the indefinite imprisonment of those so suspected.
The NDAA places the American military at the disposal of the President for the apprehension, arrest, and detention of those suspected of posing a danger to the homeland (whether inside or outside the borders of the United States and whether the suspect be a citizen or foreigner). The endowment of such a power to the President by the Congress is nothing less than a de facto legislative repeal of the Posse Comitatus Act of 1878, the law forbidding the use of the military in domestic law enforcement.
This is a very dangerous development indeed. All these things should make Americans – and not just Americans – very nervous about the preservation of their civil liberties.