The following editorial appeared recently in the San Jose Mercury News:
It's cold comfort to know that President Barack Obama has "serious reservations" with provisions of the $662 billion defense bill he signed into law as 2011 came to a close. He should have refused to sign until Congress threw out the section that gave the military the power to indefinitely detain people suspected of involvement with terrorism — even if they're American citizens.
This Congress hardly has been able to agree on anything benefiting all Americans, but this undermining of one of our most cherished ideals — the right to due process — in the name of fighting terrorism has bipartisan support. It's not just advocates of civil liberties who are appalled.
Robert Mueller, the head of the FBI, and David Petraeus, the director of the CIA, are opposed. They say the bill will hamper counterterrorism. High-ranking military officers also are increasingly troubled. Charles C. Krulak and Joseph P. Hoar, two retired four-star generals, wrote a New York Times op-ed last month arguing that the legislation violates the sacred trust "with service members, who enlist believing that they will never be asked to turn their weapons on fellow Americans."
They also warn about the danger of military custody eliminating the role of federal courts in terrorism cases. Since the Sept. 11 terrorist attacks, military commissions have not been effective in winning terror-related convictions.
President George W. Bush gave us Guantanamo and all of its sordid treatment of detainees. As a presidential candidate, Obama promised to close Guantanamo — all but impossible now that the new legislation also forbids transferring Guantanamo detainees to prisons on American soil.
What will happen if a U.S. citizen suspected of terrorism is arrested by the military? We don't need to ask. It already has happened. Jose Padilla was arrested in Chicago in 2002 for plotting a "dirty bomb" attack. Bush transferred him to a military prison, where he stayed until 2006, when he finally was tried in a civilian court and sentenced to life in prison. Under the new legislation, Padilla could have been held by the military forever, denying him his right to a day in court and denying the public the satisfaction of a conviction. Of course, the military also could have held him forever if there was no real evidence against him.
U.S. Rep. Jerrold Nadler, D-N.Y., voted against the legislation because it challenges "one of the founding principles of the United States — that no person may be deprived of his liberty without due process of law."
We can only hope that Nadler and other defenders of due process can bring this back to Congress to reconsider. Indefinite incarceration without trial is, in a word, un-American.