The execrable ancestor of the National Defense Authorization Act of
2012 (NDAA) is the Fugitive Slave Act of 1850. Frederick Douglass
protested, “Under this [Fugitive Slave] law the oaths of any two
villains (the capturer and the claimant) are sufficient to confine a
free man to slavery for life.” Under the NDAA, the suspicion of the
president is sufficient to confine an American citizen to military
detention for life without accusation or trial. The twin laws make for
an alarming tale.
The Fugitive Slave Act passed with overwhelming congressional
support. Only four members of Congress voted against it. The South
clamored for its enactment even though very few slaves ever escaped from
their owners.
The act vandalized due process. A claimant was authorized to obtain
possession of an alleged fugitive slave by presenting an affidavit
asserting ownership to a commissioner appointed by the judicial branch.
The alleged slave was prohibited from testifying to discredit the
claimant’s enslavement affidavit, which is the equivalent of proscribing
a criminal defendant from asserting his innocence. The commissioner
received a $10 fee for sustaining an enslavement claim, but only $5 for
upholding freedom. During the life of the act, slave claimants prevailed
in 322 cases and freedom triumphed in 11.
The NDAA defiles due process more egregiously than did the Fugitive
Slave Act. Section 1021 empowers the military to detain for life without
trial any American citizen captured in the United States whom the
president maintains is “substantially support[ing] … al-Qaeda, the
Taliban, or associated forces” engaged in hostilities against “coalition
partners” of the United States. None of the key terms in section 1021
are defined to constrain the president’s power to disappear Americans
into dungeons at Guantanamo Bay or elsewhere. “Al Qaeda” is undefined.
“The Taliban” is undefined. “Associated forces” is undefined. “Coalition
partners” is undefined. “Substantially supporting” is undefined. The
words can mean whatever the president, like Humpty Dumpty, wants them to
mean. “Substantial support” might be said to include any criticism of
the United States government for flouting the Constitution in combatting
international terrorism.
