Defense act aids troops, doesn't limit our rights

It was not uncommon over the past few weeks for commentators, the American Civil Liberties Union and editorialists to hysterically fret about the nation's future because of language in the bill, H.R. 1540.

It would, they told us, gut due process and habeas corpus and "shred" the 133-year-old, and widely misunderstood, Posse Comitatus Act prohibiting federal troops from being used for law enforcement -- well, kinda. It would also, among other imagined horrors, strip "rights from American citizens that we granted to Nazis during the Nuremburg trials. ..."

The measure zipped through the Senate 93-7; the House, 322-96. Despite whining from the left, Sens. Lisa Murkowski and Mark Begich, along with Congressman Don Young, rightly voted for the bill.

A conference committee version won approval this past week and was to go to President Barack Obama for approval. He earlier threatened a veto -- not because of a high-flown moral stand on rights but because it had limited some of the ways a president could detain suspected terrorists.

What does the bill do? Among other things, it authorizes $662 billion for the wars in Afghanistan and Iraq -- a $19 billion cut from last fiscal year -- and underwrites expensive weapons systems and national security programs.

Most offensive to the left, it also contains controversial language about who gets to do what to terrorism suspects -- and the military's role. Its detractors say they fear Americans will be swept up by the military and held indefinitely, although the measure specifically forbids that sort of thing.

In the conference committee version, Section 1021, "Authorization for Use of Military Force," simply codifies existing law and affirms existing presidential authority -- without limiting or expanding that authority -- to use the military to detain "covered persons ..."

"Covered persons" are those who "planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored those responsible for those attacks."

They include those who were "a part of or substantially supported al-Qaida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

But it also says plainly, "Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States."

It leaves those folks' fate to the courts -- and does not, despite howls to the contrary, suspend habeas corpus or establish a police state. This particular section was not in the original version. It was added in a 99-1 vote by the Senate.

Section 1022, titled, "Military Custody for Foreign al-Qaida Terrorists," mandates a covered person captured during hostilities be held in military custody -- but contains more holes than Swiss cheese. It also does not apply to U.S. citizens or to lawful resident aliens for what happens within the U.S., "except to the extent permitted by the Constitution of the United States." That was in the bill early on. Go figure.

The conference committee's final product is rife with options, alternatives and discretion. In fact, in some quarters, it is seen as just a little squishy. FBI Director Robert Mueller said the act is simply confusing and could affect his agency's work, even though House and Senate negotiators added language to assuage him. At week's end, he remained unassuaged.

While some believe it is another nail in liberty's coffin, it is clear that many of its detractors do not see the U.S. as being part of a global battlefield; that, with the death of Osama bin Laden, the end of the Iraq war and our withdrawal from Afghanistan our problems are over.

Nothing is further from the truth and while Americans are vigilant about constitutional abuse, we remain at war.

It is good to remember Supreme Court Justice Arthur Goldberg's words in a 1963 opinion. He wrote "... while the Constitution protects against invasions of individual rights, it is not a suicide pact."

Unfortunately, it is a pact too many of us would make.

Paul Jenkins is editor of the AnchorageDailyPlanet.com.