Imprisoned in Kafka's America

The Bill of Rights died last week. More specifically, our Fourth Amendment rights which protect citizens from illegal and unreasonable search and seizure. Or, rather “protected.”

Last Thursday, Congress passed the 2012 National Defense Authorization Act, which allocates yet another $662 billion for the wars in Afghanistan and Iraq (wait—I thought those were both ending…) and elsewhere. While the misplaced priorities of continuous and unnecessary spending on war and “defense” while states are facing deep budget cuts to healthcare, unemployment, and social security are themselves worthy of debate, this is not even the worst aspect of this spending-bill.

What makes the NDAA such a frightening piece of legislation is the provision granting expanded executive authority to the president in carrying out the “war on terror.” The bill essentially allows the president to detain anyone, anywhere at any time for, well…anything.

Specifically, the NDAA according to a New York Times editorial will, “strip the FBI, federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists and hand it over to the military… The legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial” (“Politics Over Principle,” Dec. 15, 2011).

Furthermore, the bill dramatically expands the “battlefield” of the terror war, and all but makes the new age Cold War permanent.

Indeed, this bill seems to be the last nail in the coffin for what has been a steady erosion of our civil liberties since Sept. 11.

The Patriot Act, with its grand, sweeping new powers of surveillance, was the first domino to fall. Next, President George W. Bush enacted the horrific Military Commissions Act of 2006, which allows the president to detain anyone suspected of engaging in or aiding terrorists indefinitely without trial or due process. And now, we have this latest affront to our Constitution.

Yet what is truly frightening about this bill is how much broad, bipartisan support it received. While President Obama was expected to veto the NDAA, he once again went back on his word, and instead signed the bill into law. (Maine senators Susan Collins and Olympia Snowe both voted for the bill. House reps Mike Michaud and Chellie Pingree did not.) 

Truthdig.com editor, Robert Scheer writes of the bill (“There Goes the Republic,” Dec. 15, 2011):

“What’s alarming is not just that one pernicious aspect [the expanded executive authority] of the defense spending bill, but the ease with which an otherwise deadlocked Congress that can’t manage minimal funding for job creation and unemployment relief can find the money to fund at Cold War levels a massive sophisticated arsenal to defeat an enemy that no longer exists.”

Constitutional lawyer and blogger, Glenn Greenwald takes this criticism further. Countering the misperceptions of liberals who believe President Obama is opposed to indefinite military detention Greenwald argues the president's stance is, in fact, quite the reverse.

“Obama’s objections to this bill had nothing to do with civil liberties, due process or the Constitution,” he writes in a recent blog post ("Obama to Sign Indefinite Detention Bill into Law," Dec. 15, 2011).

“It had everything to do with Executive Power. The White House’s complaint was that the Congress had no business tying the hands of the President when deciding who should go into military detention, who should be denied a trial, which agencies should interrogate suspects… In other words, his veto threat was not grounded in the premise that indefinite military detention is wrong; it was grounded in the premise that it should be the President who decides who goes into military detention and why, not Congress.” (Italics his.)

So much, it seems, for change we can believe in. In fact, Obama’s dogged continuation of Bush’s most egregious, police-state policies smacks of something right out of a Kafka novel—The Trial, to be exact.

In Franz Kafka’s final unfinished novella, a nondescript, law-abiding citizen named Josef K. is mysteriously arrested and charged with a crime—the precise nature of which he is never informed of. K does not know what he is guilty of. He is never once allowed to know the evidence against him and, as a result, is unable to legally defend himself. All he knows is the state has determined he is guilty.

“Who could these men be?” K. wonders of the secretive agents that arrest him. “What were they talking about? What authority could they represent? K. lived in a country with a legal constitution, there was universal peace, all the laws were in force; who dared seize him in his own dwelling?”

Whether Kafka’s ominous tale was meant as a prescient warning of coming totalitarianism or a postmodern account on the meaninglessness of twentieth century, post-industrial life is debatable. But the parallels remain clear.

If we as a nation do not do something to break free of this war-mongering two-party duopoly we may all soon find ourselves arbitrarily imprisoned in Kafka’s America.