indefinite detention

Amendment barring indefinite detention to be stripped from NDAA

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.

Rand Paul explains NDAA vote

Rand Paul

Last year, the blogosphere lit up over the National Defense Authorization Act (NDAA), which contained a provision that could be interpreted by courts to allow for the indefinite detention of American citizens. We covered this White House-backed provision extensively at the end of last year.

Reps. Justin Amash (R-MI) and Adam Smith (D-WA) tried to push through an amendment earlier this year to fix the muddied language, but it was rejected.

On Tuesday, the Senate passed the 2013 version of NDAA. This year’s version of the bill included an amendment, a bipartisan effort from Sens. Diane Feinstein (D-CA) and Mike Lee (R-UT), to clear up the language indefinition detention provision.

Unfortunately, there does seem to be some confusion about the the bill that ultimately passed. In a post today at his Facebook page, Sen. Paul, who voted for this year’s version of NDAA, sets the record straight:

I have noticed that many are confused by my vote for NDAA. Please allow me to explain.

First, we should be clear about what the bill is. NDAA is the yearly defense authorization bill. It’s primary function is to specify which programs can and can’t be funded within the Pentagon and throughout the military. It is not the bill that spends the money—that comes later in an appropriations bill.

Because I think we should spend less, I will offer amendments to cut spending. I will likely vote against the final spending bill. This wasn’t it.

A Note About that Awesome WeAreChange.org Video

Post image for A Note About that Awesome WeAreChange.org Video

Some Republican friends of mine have been posting and reposting this video from WeAreChange.org. It’s a great idea for a video, really. They go out and find Obama supporters and ask them about Romney policy issues – well, they say they’re Romney policy issues, but the issues are all things Obama has done or supported since he took office.

Obama supporters talk about how crazy the policies are, how they’re an overreach of government, and then they are told the truth. That’s when we get to see the look of shock on their faces, hear the disbelief in their voices, and watch as they try to find words to explain why all of those bad policies are really ok after all as they try to find words to backup their Chosen One.

Classic.

But there’s an important piece here that these Republican friends should be careful not to miss: Mitt Romney also supports those horrible policies.

The PATRIOT Act
“With respect to national security surveillance and investigations, I strongly support both FISA as amended and the PATRIOT Act, and I will ensure that we use the full range of lawful authority to obtain useful intelligence about current or future threats to our country.” – Mitt Romney

Indefinite Detention under NDAA
“The Constitution, U.S. statutes, and the laws of war permit detention of enemy combatants — including U.S. citizens — until the end of hostilities, as has been recognized by the Supreme Court.” – Mitt Romney

Obama Administration backing NDAA’s indefinite detention provision in court

Barack Obama

Last year, the Congress created quite a firestorm with the passage of the National Defense Authorization Act (NDAA), which contained a provision that would allow for the indefinite detention of anyone merely suspected of terrorist activities, including American citizens. President Barack Obama issued a veto threat, which was strange given that the White House asked for the provision, but eventually backed off.

In May, a federal judge shot down the the NDAA because of the impact it could have on the First Amendment — you know, that fundamental civil liberty for which President Obama seems to have little regard. The Obama Administration is, of course, fighting the ruling in court because, as Lucy Steigerwald explains, not having the ability to detain people without formal charges for the entirety of an open-ended “war on terror” would hurt the United States.

Ben Swann, a Cincinnati-based news anchor, recently asked President Obama about his support of the indefinite detention provision. President Obama does explain that in signing statement he promised not to use the power to detain United States citizens. Of course, that doesn’t stop a later administration from using the provision how they see fit.

Judge Napolitano slams Obama over secret “kill list”

The New York Times recently reported that President Barack Obama keeps a secret “kill list” of terror suspects. Given the uproar during the last several months over the NDAA, which allows for the indefinite detention of terror suspects, even those captured inside the United States, such a list is sure to send a chill down the spine of civil liberties advocates.

While apologists for Obama and neoconservatives will argue that this is part of the war on terrorism and claim legality for his actions due to the UAMF, Judge Andrew Napolitano recently explained that Obama’s “kill list” is blatanty unconstitutional:

We have known for some time that President Obama is waging a private war. By that I mean he is using the CIA on his own — and not the military after congressional authorization — to fire drones at thousands of persons in foreign lands, usually while they are riding in a car or a truck. He has done this both with the consent and over the objection of the governments of the countries in which he has killed. He doesn’t want to talk about this, but he doesn’t deny it. How chilling is it that David Axelrod — the president’s campaign manager — has periodically seen the secret kill list? Might this be to keep the killings politically correct?

Can the president legally do this? In a word: No.

Indefinite detention not the only problem with NDAA

Much has been made over the “indefinite detention” language included in the National Defense Authorization Act. As Ron noted earlier, an effort to fix the legislation — the Amash-Smith Amendment — was defeated by the House, which opted for much less clear language.

But the failure to get rid of the indefinite detention provision isn’t the only thing to be concerned about. The NDAA for FY 2013 includes a provision, sponsored by Rep. Adam Smith (D-WA), who sponsored the language to axe the indefinite detention provision, that would allow for taxpayer-funded propaganda to influence Americans:

An amendment that would legalize the use of propaganda on American audiences is being inserted into the latest defense authorization bill, BuzzFeed has learned.

The amendment would “strike the current ban on domestic dissemination” of propaganda material produced by the State Department and the Pentagon, according to the summary of the law at the House Rules Committee’s official website.

The tweak to the bill would essentially neutralize two previous acts—the Smith-Mundt Act of 1948 and Foreign Relations Authorization Act in 1987—that had been passed to protect U.S. audiences from our own government’s misinformation campaigns.

The bi-partisan amendment is sponsored by Rep. Mac Thornberry from Texas and Rep. Adam Smith from Washington State.

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.)

Indefinite Detention and the NDAA

Should our government be able to indefinitely detain and deny a trial to American citizens suspected of a crime? Given the Constitutional guarantee of due process, that question could seem a bit absurd. Yet late last year the House and Senate gave us new provisions in the NDAA, one of which is the allowance of indefinite detention of American citizens.

This isn’t some heavy handed attack on freedom levied by the Democrats. It’s not even some measure that passed narrowly in the House before Harry Reid forced it on us in the Senate. No, this attack on freedom carries much bipartisan support. Both Republicans and Democrats support this insanity.

You can see the House’s roll call on the 2012 NDAA here and the Senate’s roll call on it here.

Last month I wrote a piece about Justin Amash, the Congressman from Michigan who is fighting to fix the indefinite detention provisions in the NDAA. Amash has been outspoken on this issue, and his time to fight is coming soon.

The answer to Amash’s concerns over the 2012 NDAA was to reinforce habeas corpus “for any person who is detained in the United States.” Though that sounds pretty good, Amash addresses this answer in a letter to his Republican colleagues:

States moving to nullify NDAA?

Regardless of where you stand politically, you probably have some very strong feelings on the NDAA and it’s provision that will allow the government to indefinitely detain someone because they’re a “terrorist”.   The NDAA managed to make it through both chambers of Congress (remember that one is controlled by Democrats, the other by Republicans) and was signed into law on December 31, 2011, effectively killing due process.

However, some politicians aren’t exactly done fighting this one.  In Virginia, we have House Bill No. 1160.  That bill reads:

§ 1. Notwithstanding any contrary provision of law, no agency of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, political subdivision of the Commonwealth as defined in § 8.01-385 of the Code of Virginia, employee of either acting in his official capacity, or any member of the Virginia National Guard or Virginia Defense Force, when such a member is serving in the Virginia National Guard or the Virginia Defense Force on official state duty, may engage in any activity that aids an agency of or the armed forces of the United States in the execution of 50 U.S.C. 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-18, § 1021) in the investigation, prosecution, or detainment of any citizen of the United States in violation of Article I, Section 8 or 11 of the Constitution of Virginia.

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.


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