Saying that The National Defense Authorization Act for
Fiscal Year 2012 impinges on fundamental rights that are a core component of
life in a constitutional democracy and key to the Boston Bar Association's (BBA)
mission of access to justice, BBA President Lisa C. Goodheart today sent a
letter to President Obama, imploring him to veto the legislation. In her letter
she states:
On behalf of the Boston Bar Association, I write to urge you to veto the
National Defense Authorization Act for Fiscal Year 2012 ("NDAA"). A veto
is appropriate because the detention provisions of the NDAA violate fundamental
constitutional principles and are an affront to our nation's proud history of
adherence to the rule of law. The Boston Bar Association, which traces its
origins to meetings convened by our nation's second President, John Adams, and
is the oldest bar association in the United States, urges this veto on the basis
of its longstanding commitment to basic principles of access to justice.
You and members of your Administration have stated that you oppose
Congressional efforts to enact legislation that undermines our national
security, unnecessarily weakens counterterrorism efforts, and impinges on due
process and civil liberties protections that have successfully governed this
country for over 200 years. Regrettably, the detention provisions of the
NDAA do all of those things - including allowing United States citizens to be
held indefinitely without charge or trial. While Congress altered the
language of those provisions in the final bill sent to you in an apparent
attempt to appear to address these serious concerns, these provisions remain
unconstitutional, unworkable and antithetical to our nation's values and basic
principles. Because they threaten the most fundamental and important aspects of
our legal system and our form of government, we ask that you reject these
provisions and veto the NDAA.
Section 1021 authorizes the United States military to indefinitely detain
persons, including U.S. citizens, without charge or trial if they are believed
to be a part of or substantially supportive of suspected terrorist groups or
undefined "associated forces" engaged in hostilities against the United States,
even if such persons have not themselves engaged in hostile or terrorist
activity. See Section 1021(a) and (b). Section 1021 starkly departs
from very important protections that historically have been provided to all
American citizens. These include the Posse Comitatus Act of 1878, 18
U.S.C. § 1385, which was passed to safeguard against martial law and the use of
the United States military to supplant the authority of state and federal
civilian law enforcement; and more recently, the Non-Detention Act of 1971,
which provides, "No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an Act of Congress."
Equally problematic is that under both Sections 1021 and 1022, the U.S.
military is allowed to detain U.S. citizens and non-citizens "pending
disposition under the law of war." "Disposition under the law of war" is
in turn defined to include long-term detention without trial until "the end of
hostilities," prosecution before a military commission, prosecution in an
alternative court, or transfer to a foreign country. This authority
represents a significant and harmful departure from the rule of law and our
system of governance. Under this authorizing language, even U.S. citizens may be
held in military custody indefinitely or prosecuted by military prosecutors in a
military tribunal, instead of facing prosecution by the U.S. Department of
Justice in an Article III federal court. Allowing this avoidance of the
federal courts, which have successfully handled hundreds of terrorism-related
prosecutions, both violates our country's separation of power principles and
weakens our government's ability to investigate and successfully prosecute
terrorists. This provision needlessly and irresponsibly enables the
circumvention of a proven judicial system that is uniquely qualified to oversee
prosecutions of terrorist suspects and maintain a lawful system of
investigation, prosecution and adjudication.
Finally, Section 1028 establishes a permanent and onerous certification
requirement that will substantially impede the transfer from Guantanamo Bay of
detainees who have been cleared of wrongdoing to foreign countries willing to
accept them for resettlement or repatriation. This certification
requirement arbitrarily curbs the Executive Branch's ability to deal with
detainees in the manner it deems most appropriate. Further, by
conditioning the use of funds to transfer a detainee on compliance with a
burdensome certification requirement, Section 1028 will operate to further
prolong the detention of innocent individuals who have already been cleared of
any wrongdoing. In addition to the serious risk that innocent individuals
who will not face prosecution will continue to be held, perhaps indefinitely,
the certification requirement intrudes on the Executive Branch's authority and
discretion on matters of foreign policy and national security.
We are now a few weeks away from the 70th anniversary of the date of the
Executive Order that led to the deeply troubling round-up and internment of over
120,000 Japanese-Americans on American soil. Our country learned from that
grave injustice and from similar transgressions made during the McCarthy era,
and we now look back with regret on those episodes in our history. The
Boston Bar Association believes that the NDAA's detention provisions undermine
and seriously harm our nation's values and system of government, and if enacted,
will someday be viewed with similar regret. We urge you to veto an NDAA
that contains such provisions.
Thank you very much for your consideration of the views expressed in this
letter.