You know these are interesting times when Glenn Beck, Dianne Feinstein, Rand Paul and the ACLU all agree on an issue. The issue in question is Subtitle D of the National Defense Authorization Act (NDAA), headed to the president’s desk. These under-the-radar provisions, co-sponsored by Senators John McCain and Carl Levin, would allow for the indefinite military detention of any person alleged to be a member of Al Qaeda, the Taliban or “associated forces.” The provisions also apply to any person who supports or aids “belligerent” acts against the United States, whether the person is apprehended here or abroad. 


For noncitizens, such detention would be mandatory. And while news agencies from Reuters to the Huffington Post have recently reported American citizens would be “exempt” from this requirement, the truth is more complicated. Military detention would be the default. At the discretion of the president, it could be waived in favor of giving the case to domestic law enforcement. Under this law, if the Defense Department thinks you’re a terrorist, there would be no presumption of innocence. Without such a waiver, again, even if you’re a citizen, you will never hear words like “alleged” or “suspected.” You will be an “unprivileged enemy belligerent,” with limited rights to appeal that status, no rights to due process, or to a jury, or to a speedy trial guided by the rules of evidence.


According to the “law of war” invoked by these sections of the NDAA, a person in military custody can be held indefinitely, without charge and without access to civilian courts. Perhaps most significant, with the suspension of constitutional provisions for due process, there would be no Fifth Amendment right to remain silent. During the Congressional debate over the NDAA, proponents like Senators Saxby Chambliss and Lindsey Graham argued that when we capture someone deemed an enemy, we must start with the presumption that “the goal is to gather intelligence” and “prosecution is a secondary concern.” In infantile terms, they declared “the nastiest killers in the world” should be questioned for “as long as it takes,” without them “lawyering up.” This need to make “them” talk was cited repeatedly, as though Abu Ghraib had never happened.


Against the backdrop of President Obama’s recent exercise of that broadest of all possible executive actions – the targeted assassination of U.S. citizen Anwar al-Awlaki – the controversy over military detention (and Obama’s threat to veto the NDAA) might seem less dramatic. As with much post-9/11 rhetoric, the Congressional debaters spoke of “terror” as though it were a clearly defined and embodied evil. But it is not at all clear what distinguishes mere dissent or sympathy or belief or commitment or satire from the kinds of expressions of hostile ideologies that this legislation would deem dangerous. If passed, the NDAA will inevitably be followed by a raft of First Amendment litigation. 


And talk about iconic constitutional constructions: Glenn Beck’s online magazine, The Blaze, published a straightforwardly libertarian critique of the bill; the comments from his readers sizzle with Second Amendment belligerence from “patriots” who declare they are running out to buy more ammo and defecting to the hills. 


“Citizen or not,” insists Senator Graham, it’s only “using good old-fashioned common sense” that persons covered by the act shouldn’t be given more rights than if they were in Afghanistan. 


And with that conceptual wand, I guess we have lowered the constitutional bar to whatever it is in Afghanistan. 


Patricia J. Williams, professor of law at Columbia University, writes The Nation column “Diary of a Mad Law Professor.”