Habeas Corpus

Amendment barring indefinite detention to be stripped from NDAA


Around this time last year, Congress passed and the White House signed the National Defense Authorization Act (NDAA) into law. This ordinarily routine house-keeping legislation was controversial for a few different reasons, but shady language dealing with indefinite detention of anyone merely suspected of terrorist activity — including American citizens.

Last month, the United States Senate adopted an amendment to the NDAA offered by Sens. Dianne Feinstein (D-CA) and Mike Lee (R-UT) that would have limited the federal government’s ability to detain American citizens.

Unfortunately, the New York Times reported last night that the Feinstein-Lee Amendment, which easily cleared the Senate, will be dropped in the conference committee version of the NDAA:

Lawmakers charged with merging the House and Senate versions of the National Defense Authorization Act decided on Tuesday to drop a provision that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects, according to Congressional staff members familiar with the negotiations.

Drop the SOPA: Protect the Internet from censorship

In keeping with the goal to educate readers about the dangers of SOPA and PIPA, here is a piece by Tom Knighton, originally posted on December 20, 2011.

I’m kind of a rare breed of libertarian. I actually believe in the concept of intellectual property. As such, some might be under the belief that folks like me would be in favor of something like the Stop Online Piracy Act, or SOPA.

Of course, they would be horribly, horribly wrong.

Regardless of ones feelings on IP, the reality is that SOPA is nothing less than a NDAA or PATRIOT Act for the internet.

You see, the internet is the last bastion of freedom anywhere in the world. While it’s entirely possible to render something illegal in one country, it’s virtually impossible to stamp it out. Laws and regulations become meaningless as physical borders mean nothing on a cyberscape free from such lines.

The kick in the butt with this bill, as with many similar bills, is that it really won’t do a whole heck of a lot to combat piracy. Of course, there are some that will argue that what SOPA seeks to do is crush that freedom. That ideas breed in such freedom, and such ideas can not be allowed to incubate.

I don’t know if I would go that far, but what is clear is that SOPA is nothing more than a powergrab. Those that are supposed to support and defend the Constitution have instead decided to just ignore the document completely.

SOPA seeks to require your ISP to spy on you. It seeks to hurt companies like Mozilla that haven’t done what the powerful want it to do. It seeks to rewrite the current laws regarding the internet and remake it into a place where innovation no longer happens.

SOPA must be shot down by Congress

In keeping with the goal to educate readers about the dangers of SOPA and PIPA, here is a piece by Jason Pye, originally posted by  on December 20, 2011.

On the heels of the National Defense Authorization Act (NDAA), which effectively shredded the Due Process Clause of the Fifth Amendment and Habeas Corpus, Congress will likely take up the Stop Online Piracy Act (SOPA) at some point early next year.

For those of you that haven’t followed SOPA, Tina Korbe at Hot Air offers a very good introduction to the legislation:

Introduced by Rep. Lamar Smith (R-Tex.) and co-sponsored by representatives from both parties (the bill has a total of 31 co-sponsors!), the Stop Online Piracy Act purports to stop “foreign online criminals from stealing and selling America’s intellectual property and keeping the profits for themselves.”

According to Rep. Smith’s website, “IP theft costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs. The Stop Online Piracy Act specifically targets foreign websites primarily dedicated to illegal activity or foreign websites that market themselves as such. The bill ensures that profits from America’s innovations go to American innovators.”

That sounds relatively harmless, but there has been a lot of concern among tech-advocates that SOPA would would lead to censorship and deter innovation on the Internet.

Korbe continues:

Senators introduce the Due Process Guarantee Act

A bipartisan group of Senators have wasted no time in trying to apply a legislative fix to the “indefinite detention” language in the National Defense Authorization Act (NDAA), which was passed last night. The Due Process Guarantee Act (full text below), sponsored by Sen. Dianne Feinstein, would ensure the protections that the NDAA would seemingly erase:

Senator Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee, today introduced the Due Process Guarantee Act of 2011, legislation that states American citizens apprehended inside the United States cannot be indefinitely detained by the military.

The Due Process Guarantee Act of 2011 amends the Non-Detention Act of 1971 by providing that a Congressional authorization for the use of military force does not authorize the indefinite detention—without charge or trial—of U.S. citizens who are apprehended domestically.

The Feinstein bill also codifies a “clear-statement rule” that requires Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents. The protections for citizens and lawful permanent residents is limited to those “apprehended in the United States” and excludes citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.

NDAA: How bad can it be?

With Congress passing the NDAA, the question many ask is simple: How bad will/can it get?  It’s a fair question.  While the constitutional questions this bill raises are a topic of debate amongst the talking heads and various other politicos, the average person must ask that simple question.

The NDAA essentially turns the entire United States into a warzone for the purposes of combating terrorism.  It also gives the government extra-constitutional powers for this very same purpose. Officially, this is about Al Qaeda and “associated forces”, whatever that means.

The thing is, when you look at how Obama’s White House has defined “domestic terrorists”, one is left to wonder when will they decide to define “associated forces” to include domestic terrorists.  Honestly, I don’t think it would take very long, and as there is no due process, it’s unlikely that the courts will get a say on this for a very long time.

So the first thing we have to understand is, “what is a domestic terrorist”?

((5) the term `domestic terrorism’ means activities that—

Jon Stewart on the National Defense Authorization Act (NDAA)

On Wednesday, Jon Stewart covered the Senate’s passage of the National Defense Authorization Act (NDAA), which contains language that would allow the federal government to detain American citizens indefinitely without formal charges or trial.

Listen carefully and call your members of Congress:

Congress must shoot down the defense authorization bill

A few days ago, I wrote that the compromise is the Senate over the detainee language in the defense authorization bill was a good thing. Well, after reading more about it, it’s clear that Americans are still in danger of being detained indefinitely by their own government without formal charge, as Sheldon Richman of the Foundation for Economic Education explains at Reason:

Permit me to state the obvious: The government shouldn’t be allowed to imprison people indefinitely without charge or trial. It shouldn’t be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.

Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the U.S. Senate. Last week the Senate voted 61-37 in effect to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial—perhaps at Guantanamo—if they are merely suspected of involvement with a terrorist or related organization—and even if their suspected activity took place on U.S. soil.

The provision, which is included in the National Defense Authorization Act, was drafted without a public hearing by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.). Sen. Mark Udall (D- Colo.) sponsored an amendment to remove the power, but the amendment was defeated. A related provision requires that terrorism suspects who are not citizens be held by the military rather than being tried in a civilian criminal court. (The executive branch can waive this requirement after certifying to Congress that the waiver is a matter of national security.)

Senate clarifies detainee language

There is some rare good news out of Washington, even rarer when it deals with civil liberties. In a vote of 99 to 1, the United States Senate adopted new detainee language in the defense authorization bill:

The U.S. Senate on Thursday night struck a bipartisan deal that modified controversial language in a major defense policy bill which had drawn strong opposition from critics in both parties, who charged it would allow the indefinite detention of American citizens by the military.

The 99-1 vote came after several days of heated debate on the Senate floor over whether this defense bill really changed how U.S. citizens accused of supporting terrorists would be treated, or if critics were right that U.S. citizens could be held by the military indefinitely without the filing of formal charges.

Compromise language developed in part by Sen. Dianne Feinstein (D-CA) was ultimately approved, which read as follows:

“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

The compromise won almost unanimous support, as Senate Armed Services Committee Chair Carl Levin (D-MI) said he would fight to protect that language in upcoming House-Senate negotiations; it was unclear whether the language would be accepted by the White House, which has threatened to veto the entire defense bill.

So much for the Great Writ of Habeas Corpus

The United States Senate voted yesterday to keep language in a defense authorization bill that would allow the federal government to indefinately detain American citizens without formal charges based on merely on the suspicion that they may be terrorists. Apparently, the writ of Habeau Corpus doesn’t mean what it used to:

The Senate soundly defeated a move to strip out controversial language requiring mandatory detention of some terror suspects, voting it down 61 to 37 and escalating a fight with the Obama administration over the future course of the war on terror.

The proposed amendment to the massive National Defense Authorization Act would require the FBI and other civilian law enforcement agencies to transfer al-Qaida suspects arrested overseas on charges of planning or carrying out a terror attack into military custody. It wouldn’t apply to American citizens, but the change has drawn strong opposition from civil rights groups and the White House, which has promised to veto the defense bill if that language was included.

The provision has also split the Democratic Party, triggering an unusual fight between the White House and Armed Services Committee Chairman Sen. Carl Levin of Michigan, who co-wrote the measure and took to the floor earlier on Tuesday to defend the amendment. Levin has also found himself in the cross hairs of powerful Democrats like Judiciary Committee Chairman Sen. Patrick Leahy of Vermont and Intelligence Committee Chairwoman Dianne Feinstein of California. Both lawmakers urged their colleagues to strip the detainee language out of the bill and accused Levin of overstepping his jurisdiction.

But Levin’s biggest Democratic opponent was Sen. Mark Udall, D-Colo., who sponsored an amendment designed to remove the detainee language.

Reflections on Memorial Day

I write this on May 24, the eve of Memorial Day, the day set aside to commemorate Americans who have died while in military service. This day was originally created (the first commemoration was May 30, 1868) to honor Union soldiers of the War Between the States, and was later expanded after World War I to include all those who have died in military service. Typically, commemorations can be expected to include much in the way of what is considered “patriotic” music (more accurately described as nationalistic), along with tributes themed along the lines of thanking those “who fight for our freedoms.” This spills over into Sunday services of many churches around the nation, when the emphasis temporarily focuses away from the praise of God and the proclamation of the Gospel, towards one of military service and national greatness.

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