Persons, Citizens, and Indefinite Detainment under NDAA

Late last week the House passed the 2013 NDAA. Last year during this process, allowances were made that allowed for the indefinite detainment – without trial – of people in the U.S. who were suspected of participating in terrorist activities or associating with people who did.

Keep in mind we’re talking about people merely suspected of a crime. Also keep in mind that the verbiage was so broad that it would be fairly easy for someone to accidentally fall into that category.

Cries came from civil libertarians over due process, and Michigan Congressman Justin Amash took the lead fighting the NDAA’s unconstitutionality on the Republican side of the aisle. He partnered with Democrat Adam Smith of Washington to offer an amendment to change the law to follow the Constitution. The GOP leadership pushed a competing amendment from Louie Gohmert of Texas. It passed the vote, and the Smith-Amash failed.

I asked my Congressman, Tom Graves, for an explanation of his opposition to the Smith-Amash amendment, and he referred me here. The concern from Graves was that “[the Smith-Amash] amendment would extend Constitutional rights and the right to judicial review to anyone apprehended in the United States,” something the Republicans are hesitant to do.

Except that’s how the process is supposed to work.

The concerns over the 2012 NDAA touched on a large portion of the Bill of Rights – arguably the First, Fourth, and Fifth Amendments,  and most definitely the Sixth Amendment. The disagreement between the GOP leadership and Amash’s position is whether the Constitution protects citizens or persons.

Consider these amendments. (The emphasis in these quotes is mine.)

First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

Fifth Amendment:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…”

Sixth Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

None of these Amendments make any stipulation of citizenship. This quote from Reason addresses the person/citizen issue much better than I could:

“…it helps to recall that people who weren’t lucky enough to be born Americans are in fact still people; And to defend suspected terrorists is not to defend terrorism. The government doesn’t exactly have a flawless record in grabbing the right people. And to defend the rights of non-citizens from detainment without charge is not to defend the guy caught flying over Detroit with a lit fuse in his underwear. It’s to defend the the hundreds of thousands of other, grayer cases than that.”

While the Gohmert amendment to the 2013 NDAA was a step in the right direction, it still doesn’t fix the NDAA so that it abides by the Constitution. On top of that, we’ve still got the issue that all but 19 of the House Republicans apparently don’t understand a pretty critical piece of the Constitution.

Where this goes next, I don’t know. Last year warmonger John McCain argued on the floor of the Senate that the government needed the authority to detain citizens indefinitely, so I don’t know if there’ll be a fight over that change or not, but it wouldn’t shock me.

No matter what happens in the Senate, the fight over the constitutionality of the NDAA will go on. Amash was quoted in this NY Times piece: “We’ve got a ways to go still, but there are a lot of Republicans who are listening now. I’m confident that most of them are going to go back to their districts, and they are going to get hammered on this issue.”

It’s critical that we hold our representatives accountable for how they vote, especially when they vote in favor of unconstitutional legislation. Follow up with your Congressman on his NDAA vote, and make sure he knows what you think about his votes cast in support of unconstitutional legislation.


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