The Magnificent Seven
By Judge Mark J.Plawecki
“If destruction be our lot, we must ourselves
Be its author and finisher. As a nation of freemen,
We must live through all time, or die by suicide.”
— Abraham Lincoln, 1838
“Suicide is painless.”
— Theme from M*A*S*H*, 1970
Seventy years to the week after Japan’s sneak attack on Pearl Harbor, indefatigable and high-minded Michigan Senator Carl Levin, along with sidekick John McCain of Arizona, may have conducted a similar maneuver on the U.S. Constitution both have sworn to support and defend. Amendments to Senate Bill 1867, aka the National Defense Authorization Act for 2012, were reportedly crafted in secret by the two Armed Services Committee ranking members just prior to the weekend most Americans stuff themselves with stuffing, riot to obtain better deals on flat screen TVs, and then actively participate in battle (via fantasy leagues and those flat screens), with their beloved gridiron gladiators, through overtime if needed. No committee hearing was held; no notice to other committee heads (such as jurisdictional Judiciary or Intelligence) was given.
Senate Bill 1867 now includes sections (S 1031 and S 1032) that authorize the military, upon order of the President, to arrest and indefinitely detain American citizens, even on U.S. soil, without trial or even charge. Here is the language of 1031 (b) (2) “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners… (emphasis added), and (c) (1) “Detention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force (AUMF).”
Section 1032 allows (but does not mandate) that even U.S. citizens on U. S. soil accused of terrorism be held by the military rather than be charged by the civilian court system.
Key phrases “substantially supported” and “associated forces” are expansions of the original AUMF declaration and could conceivably mean any number of unsuspecting people. “Until the end of hostilities,” of course, means never, since the scenario of someone named Tommy T. Terrorist signing surrender documents to any Douglas MacArthur successor is highly doubtful.
Though the language of 1031 and 1032 is not crystal clear, any ambiguity was alleviated by Levin/McCain water boy Lindsey “Low Han-ded” Graham, who proclaimed on the Senate floor, “Section 1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
Utah’s Mark Udall offered an amendment to SB 1867 to take out S 1031, but it failed by 38-60, just enough votes needed to avoid a filibuster by some Jefferson Smith-type who might attempt to awaken a slumbering populace. Then California’s Diane Feinstein proposed another to exempt U.S. citizens from the 2001 AUMF; that failed 45-55.
In the end, The World’s Greatest Deliberative Body voted 93-7 to codify the negation of Article III, Section 3 (1) of the Constitution (“No Person shall be convicted of Treason unless on the Testimony of Two Witnesses to the same overt Act, or on Confession in open Court.”), as well as the 5th Amendment Due Process clause. Voting for the previously cherished American values were Republicans Tom Coburn (OK), Mike Lee (UT), and Rand Paul (KY), Democrats Tom Harkin (IA), Jeff Merkley (OR), and Ron Wyden (OR), and Independent Bernie Sanders (VT).
Like the hired guns who saved the tiny village from Mexican marauders in the immortal western “The Magnificent Seven,” this heroic heptagon tried to rescue the village of America from the bandits whose regular extortion of the citizenry has gone on quite long enough. Unfortunately, real life is not exactly like the movies, unless “Triumph of the Will” is to be soon reenacted in Atlanta (Sister City to Nuremberg). Though Team Obama has threatened to veto the bill, the Senate may of course override with a two-thirds vote. If it does, so goes another nail in the coffin of our soon-to-be former Republic.
Are Sections 1031 and 1032 even about fear of al-Qaeda? Why, after a decade of its War on a Tactic, and when al-Qaeda has been officially declared “operationally ineffective” in Af-Pak, does growth in executive power continue? The answer may lie in cities across America where the Occupied Movement has pitched its tents. The fear in Washington of rebellion is real, and likewise the fear that a growing number of voters are on to its gilded game of graft. “This Week” (ABC) and “Meet the Press” (NBC), those Sunday morning “issues” infomercials brought to you by corporate do-gooders like Boeing, Chase, and Exxon Mobil, both neglected to mention Senate Bill 1867 in the week after debate and passage. Not an oversight, folks — they just don’t want us getting all worked up over losing our basic rights. Now back to the Lions’ playoff chances, on our 80” screens…
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Mark J. Plawecki is a district court judge in Dearborn Heights. Confession of a Condor pledges to continue a fondness for the quaint old U.S. Constitution.
