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The NDAA is Much Less “Fixed” than They Claim

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Once president Obama signed the National Defense Authorization Act (NDAA) it appears that word went out to all of the Senators and Representatives who voted for it that the bill was fixed and they should write their constituents reassuring them that it the bill no longer authorized the indefinite detention of US citizens inside our borders by the military on presidential order and without due process of law.

So the reassuring emails were sent to all the constituents who had lobbied against the passage of the bill with the military detention provisions included, and a lot of them were pacified by these earnest statements from legislators who likely either did not read or did not understand the totality of the NDAA as it was finally passed. They were convinced that the addition of the statements “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens” (1021.e) and “The requirement to detain a person in military custody under this section does not extend to citizens of the United States” (1022.b.1) actually fixed the problems with the bill.

What they failed to understand is that the first statement is meaningless because the authors of the bill and the president believe that they already had the power to detain civilians in military custody without due process even before this bill was passed, and that the second statement still uses the term “requirement” which means that while military detention of US citizens is not required in all cases as it is with foreign citizens, it is still an option if ordered by the president.

All they had to do to actually fix this bill was change the phrase “not required” in the original language to “prohibited” when referring to the military detention of US citizens and all of the complaints would have been satisfied. That they did not do this when every expert had told them it was the simple and obvious solution and that they instead engaged in misdirection and false assurances, demonstrates a cynical attitude towards the intelligence of the outraged public which had been loudly lobbying against this aspect of the NDAA.

While reassuring letters from Congressmen may have won over some former opponents, they are not fooling civil liberties lawyers who have actually read the bill and looked at the final wording in context. You don’t have to take my word for the persistence of military detention in the legislation because plenty of legal experts are speaking out against it. Sadly they don’t have the platform or authority of a letter from your trustworthy hometown Congressman.

On Justia.com Professor Joanne Mariner, director of the Hunter College Human Rights Program and formerly with Human Rights Watch, writes of the NDAA:

“Notably, section 1022(b)(1) does not exempt American citizens from the more important provisions in section 1021, which allow the military detention of broad categories of terrorist suspects. It does not, therefore, improve on the status quo by extending any new protections to Americans.

“Moreover, the specific exemption for American citizens in section 1022 could be understood as suggesting, by negative implication, that American citizens are covered by section 1021. Potentially reinforcing this view is the fact that an effort to amend section 1021 to exempt citizens failed in the Senate. If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative.”

And she dismisses the supposed promise of protection for US citizens from changes in the law, writing:

“the provision’s reference to “existing law” begs far too many questions. It is precisely the scope of existing law that is subject to vociferous debate and continuing litigation. Under the Bush administration, the law was interpreted to allow the indefinite detention of both citizens and non-citizens arrested anywhere in the world, including the United States.”

Benjamin Wittes, who is a senior fellow in Governance Studies at The Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security, writes in his FAQ explaining the NDAA that our rights were already essentially gone in practice and that the NDAA just formalizes this situation:

“The NDAA is really a codification in statute of the existing authority the administration claims. It puts Congress’s stamp of approval behind that claim for the first time, and that’s no small thing. But it does not–notwithstanding the widespread belief to the contrary–expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect.”

Although he does write off most of the concerns with the NDAA as being based on its ambiguities and ultimately left up to determinations by the courts, he also raises the additional concern that “the NDAA could theoretically be said to expand detention authority involves people held on the basis not of membership in an enemy group but mere support for one,” validating the concern that the applicability of military detention could be expanded to include people with no direct involvement in any terrorist activity.

In its press release on the signing of the bill, the ACLU is much more definitive about its concerns, quoting ACLU Executive Director Anthony D. Romero:

““The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”

And stating that:

“Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody, and many in Congress now assert that the NDAA should be used in the same way again.”

What is clear from reading all of this analysis of the bill is that although the final revision successfully muddied the waters, it did not fix the basic concerns with military detention of US citizens. That the government believed they already had the power before the passage of the NDAA does not excuse the authors of the bill from responsibility for formally codifying this practice.

It does to some degree reframe the debate, however. The argument is now much more basic, between those who believe that the NDAA should have been used as an opportunity to prohibit military detention and protect the rights of citizens, and those – like most members of Congress – who seem perfectly comfortable with giving the president the power to suspend foundational legal principles like Posse Comitatus and Habeas Corpus when even a hint of association with terrorism is involved.

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About Dave Nalle

Dave Nalle is Executive Director of the Texas Liberty Foundation, Chairman of the Center for Foreign and Defense Policy, South Central Regional Director for the Republican Liberty Caucus and an advisory board member at the Coalition to Reduce Spending. He was Texas State Director for the Gary Johnson Presidential campaign, an adviser to the Ted Cruz senatorial campaign, Communications Director for the Travis County Republican Party and National Chairman of the Republican Liberty Caucus. He has also consulted on many political campaigns, specializing in messaging. Before focusing on political activism, he owned or was a partner in several businesses in the publishing industry and taught college-level history for 20 years.
  • Rwolf

    Americans Lose Constitution & Country To New Fascist Legislation

    Almost every week there are published news accounts of Police Corruption, e.g. Police taking bribes, aiding & smuggling illegal drugs, robbing drug-dealers and committing perjury.

    ALERT! Perjury by police and their informants may now pose the greatest threat to Americans’ Freedom due to Congress in December 2011 passing (NDAA) The National Defense Authorization ACT of 2012.

    Under (NDAA) Government does not need probable cause or corroborating evidence to Indefinitely Detain Americans without charges, no right to an attorney, trial or Habeas Corpus; Police that falsify reports and give perjured testimony can now cause innocent Americans to be swept off the street and indefinitely incarcerated for being a suspected terrorist or supporting Terrorism: Note no violent act is required to be charged with involvement in terrorism under (NDAA).

    If that is not scary enough, Congress is now considering HR 3166 and S. 1698 also known as the “Enemy Expatriation Act” sponsored by Joe Lieberman (I-CT) and Charles Dent (R-PA) that would let Government Strip Your Citizenship Without a Conviction. Once an American’s Citizenship is stripped they have no rights whatsoever. To read article, search title: New Bill Known As Enemy Expatriation Act Would Allow Government To Strip Citizenship Without Conviction.
    To read the full text of the bill, go here.

    Currently there are several Multi-State Recall Petitions of Congressman that voted for The National Defense Authorization ACT of 2012.

    Some observers believe NDAA included the vague term “Belligerent” in the manner it did, so U.S. Government would have authority granted by Congress to Indefinitely Detain large numbers of Americans not involved in terrorism.

    Under NDAA, U.S. Government can deem anyone a “Belligerent” for indefinite detention. The term “Belligerent” is so expansive and vague an American Citizen could be labeled a “Belligerent” for exercising First Amendment Rights–speaking out for or against any issue; protesting a U.S. Government Policy; agency or coalition Partner. It is foreseeable U.S. Government will threaten Americans with Indefinite Detention that refuse to act as informants. The East German Stasi Police used this tactic to create an army of neighborhood and other informants.

    The passed (Defense Authorization Act of 2012) appears more threatening to Americans than (Hitler’s FASCIST 1933 Discriminatory LAWS) that suspended provisions in the Reich Constitution that Protected German Citizens’ Civil Liberties?

    For example–Hitler’s 1933 DISCRIMINATORY LAWS (stated fines and time limits) that German Citizens could be incarcerated for e.g., Serious Disturbance of the Peace, Provoking Public Unrest, Rioting; Acts that threatened National Security. In contrast Senators John McCain and Carl Levin’s passed National Defense Authorization Act of 2012–mandates holding Americans’ (Indefinitely) in Military Custody for being a mere “Belligerent.”

    Under the passed National Defense Authorization, could some Americans (Retroactively) be subject to Indefinite U.S. Military or Prison Detention without charges or right to an attorney or trial?

    Consider most American activists don’t know what other activists and groups they networked or associated did in the past–perhaps illegal. Both the National Authorization Act of 2012 and USA Patriot Act are expansive and vague–what constitutes (1) supporting or aiding terrorists, (2) a terrorist act; (3) when someone is a “Combatant” or (4) “a Belligerent.” For example, Americans advocating, attending or supporting a meeting or protest demonstration against a U.S. Government Agency; Policy or U.S. Military Action–could be charged with (1) (2) (3) and (4) under NDAA and the Patriot Act.

    History Repeats: When other countries passed Police State Laws like The Defense Authorization Act of 2012, Citizens increasingly abstained from politically speaking out; visiting activist websites or writing comments that might be deemed inappropriate by their Police State Government, e.g. cause someone to lose their job; be investigated; disappeared and or detained in Police/Military Custody. Some writers might be dead-meat under NDAA.

    It appears that “Americans” who write on the Internet or verbally express an opinion against any entity of U.S. Government or its coalition partners–may under the Patriot Act or The Defense Authorization Act–be deemed by U.S. Government (someone likely to engage in, support or provoke violent acts or threaten National Security) to order an American writer’s indefinite military or prison detention.

    Is NDAA Retroactive? Can U.S. Government invoke provisions of NDAA or the Patriot Act to assert a U.S. Citizen’s past or current writings (protected by the 1st Amendment) supported or aided terrorists, provoked combatants or belligerents as a premise to order an author’s Indefinite Detention?

    The Defense Authorization Act of 2012 did more than Chill Free Speech–it may FREEZE IT! Consider: In mid-January 2012 Homeland Security announced the National Operations Center (NOC) received permission from Washington to monitor journalists and retain data on users of social media and online networking platforms. Could this Homeland Security spying, tracking Americans result in Citizens abstaining from visiting and posting comments on websites? It is not clear why Homeland Security wants to track users of social media and online networking platforms. You may read, search title: Homeland Security Monitors Journalists 1-7-12.

    It should be expected that indefinitely detained U.S. Citizens not involved in terrorism or hostile activities, not given Miranda Warnings when interrogated or allowed legal counsel; will also be prosecuted for non-terrorist (ordinary crimes) because of their (alleged admissions) while held in Indefinite Detention.

  • Stacey

    Nationwide NDAA 2012 Congressional Protest is Feb. 3rd. Spread the word!

  • Joe

    If they don’t provide a due process, it’s not a legitimate arrest – it’s a authorized kidnapping!

  • bringovdown

    Orrin Hatch is on the Finance Committee in the Senate- he’s voted for 16 debt ceiling increases and the NDAA- time for him to leave after 36 freaking years

  • Bill Anderson

    Concerned about civil liberties? Please search for “New police weapon against homeless” on homeless forums. Bill Anderson

  • Obama has issued his NDAA Signing Statement. Here is mine:

    Americans must not be distracted by Corporate Fascist Puppet Barack Obama saying “my Administration will not authorize the indefinite military detention without trial of American citizens” in his signing statement for the National Defense Authorization Act of 2012 (H.R.1540). Presidential “signing statements” are political propaganda with no Constitutional basis. A President who breaches a signing statement covenant faces no more consequences than any other corrupt politician who renegs on a promise. By signing NDAA and attempting to give its unconstitutional provisions the force of law, Barack Hussein Obama became complicit with all of the bought-and-paid-for U.S. Senators and Representatives who voted for this bill, and along with them should be charged with Seditious Conspiracy under U.S. Code Title 18 Part I Chapter 115 Section 2384. Unless and until these vermin are arrested, charged and removed from office, I will no longer consider the government they infest to be legitimate. Nor will I respect any ruling to the contrary from a judicial system that grants rights of citizenship to corporate entities that treat settlements and penalties for criminal conduct as costs of doing business with no concerns about incarceration or execution to deter their illegal, immoral or unethical conduct.

    No more Left. No more Right. Time to Unite. Stand and Fight!