Editor’s Note: This column is reprinted with permission of
the Washington Examiner.
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Last Thursday—which happened to be the 220th anniversary of the
ratification of the Bill of Rights—the Senate passed a defense bill
that demonstrates just how cavalier Congress can be with our
fundamental liberties.

Given the opportunity to clarify existing law and confirm that
American citizens are not subject to indefinite military detention
at the order of the president—Congress punted.

After a debate in which key members seriously contemplated
empowering the president to “Gitmo-ize” Americans suspected of
terrorist activity, the National Defense Authorization Act of 2012
leaves the question open. Maybe he can, maybe he can’t, so let’s
let the courts sort it out.

The legislation is ready for President Obama’s signature, the
president having caved on his earlier veto threat. Happy Bill of
Rights Day!

It could have been even worse. An earlier version of the bill
would, according to one of its cosponsors, Sen. John McCain,
R-Ariz., have allowed the president to use the U.S. military to
seize American citizens on the home front and ship them to
Guantanamo.

Sen. Lindsey Graham, R-S.C., cheered the provision, because it
would “basically say in law for the first time that the homeland is
part of the battlefield.” He added that “I believe our military
should be deeply involved in fighting these guys at home.”

James Madison, the father of the Bill of Rights, was somewhat
less giddy about the prospect of militarizing the home front. “A
standing military force, with an overgrown Executive will not long
be safe companions to liberty,” he warned at the Constitutional
Convention, “the means of defense against foreign danger have
always been the instruments of tyranny at home.”

Yet for all the Tea Party-inspired Constitution-waving on the
Hill, only a minority of Republicans seem to share the Founders’
justified fear of standing armies at home.

An amendment that would have explicitly excluded U.S. citizens
from the bill’s military detention provisions failed by a 45-55
vote in the Senate, with only a handful of Tea Party
Republicans—including Sens. Rand Paul, R-Ky., Mike Lee, R-Utah, and
Mark Kirk, R-Ill.,—breaking with their party to oppose selective
martial law within the United States.

The language that passed Thursday ducks the issue, stating that
the bill isn’t intended to change existing law on U.S. citizens
arrested in the U.S. But the compromise Congress settled on settles
nothing. Existing law is unclear, and the NDAA makes it murkier
still.

In 2002 during the Bush administration, federal officials seized
Brooklyn-born al Qaeda suspect Jose Padilla, declared him an “enemy
combatant,” and ordered him held in a military brig without
charges.

The Bush Justice Department argued that Congress had authorized
military detention of citizens at home when it authorized war
against al Qaeda. But fearing a Supreme Court rebuke, the
administration transferred Padilla to federal prison in early 2006,
so that question has never been resolved by the Court.

But Congress can clarify the issue itself. Paul has joined 12 of
his colleagues in backing the “Due Process Guarantee Act of 2011,”
which insists that congressional authorization for a war “shall not
authorize the detention without charge or trial of a
citizen…apprehended in the United States, unless an Act of
Congress expressly authorizes such detention.”

A decade into the War on Terror, al Qaeda is a radically
diminished force. At home, it’s apparently been reduced to a few
hapless radicals, too dumb to realize they’re being played by FBI
informants.

If Congress thinks its necessary to turn America into a
battlefield to address that sort of threat, the least they can do
is to say so.

Gene Healy is a vice president at the Cato Institute and author
of The
Cult of the Presidency: America’s Dangerous Devotion to Executive
Power (Cato 2008). He is a columnist at the
Washington
Examiner, where a version of this article originally
appeared.
Click
here to read it at that site.