I have heard from many Alaskans who have received information about the details of last week's Defense Authorization Vote in selective snippets. I want to take a few moments with you to discuss this vote and the underlying meaning with you.
In these highly partisan times, it is rare that the Senate comes together on a bipartisan vote of 93-7 on an issue of great controversy. Yet that is precisely what occurred on Dec. 1 when the Senate approved its version of the National Defense Authorization Act for fiscal 2012.
This unusual demonstration of unity has nothing to do with the fact that elections are near. It reflects a deep-seated concern that even after the death of Osama bin Laden, Al Qaeda remains a potent threat to the sense of security Americans take for granted.
At issue was the question whether an individual who is a member or associate of Al Qaeda apprehended on American soil in the course of perpetrating aggression against the United States could be treated as an enemy combatant or must be treated as a common criminal. The Senate bill holds that the individual should be presumed to be an enemy combatant and may be interrogated and detained as if captured on a foreign battlefield.
However, it leaves to the president the discretion of whether to prosecute the individual in the criminal justice system or interrogate and try the individual as an enemy combatant to the president. The provision should neither please those who believe that all terrorists must be tried by military commissions nor does it provide that all terrorists will be given their miranda rights and tried by jury in U.S. courts.
But most crucially, the provision does not state that American citizens who commit terrorist acts on U.S. soil – even those accused of collaboration with Al Qaeda -- will be tried by military commissions. Existing U.S. law prohibits that and the Senate action does nothing to disturb it. However, US citizens who collaborate with Al Qaeda can be detained and interrogated by the military in the hope that they will provide valuable information that may protect Americans from future attacks.
Some would say this is simply unconstitutional. The U.S. Supreme Court has on more than one occasion reached the opposite conclusion. The Senate bill reaffirms a principle dating back to World War II. Wars that begin abroad can migrate to American soil. And when they do, those individuals who perpetrate acts against the United States may be treated as the enemy, not as criminals
The legal case began with a plot that sounds like a Hollywood script, Nazi Germany attempted to insert eight saboteurs into America to attack war industries -- one of which was an American. Four landed via a submarine off the coast of Long Island, N.Y., and the rest were discharged in Florida. Two surrendered and were turned over to the military for trial and sentencing. The remaining six were captured and executed after trial by military commission. In 1942, the Supreme Court reviewed the constitutionality of their treatment and decided "U.S. citizenship of an enemy belligerent does not relieve him from the consequences of that belligerency." Similarly, the non-U.S. nationals who attempted to bring World War II to American soil were not relieved of the consequences of their actions. Their trial and sentence as enemy combatants was affirmed.
Our present-day fight against Al Qaeda involves a different enemy than the one we fought in World War II -- a non-state, non-uniformed enemy. But that is of little comfort to the friends and families of the 3,000 innocent people who died on Sept. 11, 2001 -- or those who nearly faced death aboard Northwest Airlines flight 253 on Christmas evening 2009. As my colleague Lindsay Graham noted in Senate debate, it was only through luck, pure luck, that the explosives carried in the underwear of Umar Farouk Abdulmutallab did not detonate.
In the aftermath of the Sept. 11, 2001, terrorist attacks we have walked a fine line between protection of our common security and defense of our individual liberties. I have and will remain vigilant to ensure that the powers Congress provides to defend our country are not abused – and that clearly defined limits are put in place. The limitations on who falls under this legislation and the limits imposed upon the authorities were important to me in voting in favor of the bill.
Nothing in the bill would allow any branch of the military to detain a law-abiding American citizen if you go to the local gun store or grocery store, and the two sections in question affirm the authority of the executive branch to act within our national interest and provide the federal government with the tools that are needed to maintain our national security. This bill does not take away your rights as a citizen or lawful permanent resident; the authority under this act does not take away one's habeas rights. These sections do not take away an individual's rights to equal protection under the 14th Amendment to the U.S. Constitution, nor do they take away one's due process rights afforded under the 5th or 14th Amendments. If the bill did such a thing, I would, without question, vigorously oppose it.
It was said long ago that eternal vigilance is the price of liberty. We must remain ever-watchful of those who threaten our freedoms, but also ever-mindful of the value of our individual liberties.
Sen. Lisa Murkowski is Alaska's senior member of the U.S. Senate. The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch. Alaska Dispatch welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.