NDAA 2013 Headed to Full House; Smith/Amash Amendment Offered -- Do you approve of this?
As we reported late last week, the House Armed Services Committee passed the latest version of the National Defense Authorization Act (NDAA).
also informed readers that despite promises to the contrary from
Committee Chairman Howard P. “Buck” McKeon (R-Calif.), the provisions of
the bill permitting the indefinite detention of American citizens
without charge or trial remain intact.
this week the House will begin deliberating the annual markup of the
NDAA, and there is hope that there will be renewed opposition from
members of Congress to the most pernicious sections of the bill — those
giving the President authority to deploy the armed forces of the United
States to arrest and indefinitely detain American citizens apprehended
on American soil who are suspected by him of posing a military threat to
the security of the homeland.
Even a cursory
reading of the revamped version reveals the presence of these most
unconstitutional grants of power, despite assurances that the new
language is less offensive to our nearly-1,000-year history of enjoying
these basic civil liberties.
For example, Section 1033 of the mark-up version
passed by the committee is pointed to by McKeon as proof that habeas
corpus is protected in the 2013 legislation. Here is the current text of
that updated provision:
This section would
state that nothing in the Authorization for Use of Military Force
(Public Law 107-40) or the National Defense Authorization Act for Fiscal
Year 2012 (Public Law 112-81) shall be construed to deny the
availability of the writ of habeas corpus in a court ordained or
established by or under Article III of the Constitution for any person
who is detained in the United States pursuant to the Authorization for
Use of Military Force (Public Law 107-40).
The double-speak contained in that paragraph is impressive even for a Capitol Hill lawyer.
it very closely: The new bill does nothing to prevent the indefinite
detention of Americans under the 2013 NDAA; furthermore, it only
reiterates that habeas corpus is a right in courts established under
Article III of the Constitution. That such a right exists in the courts
of the United States has never been the issue. The concern of millions
of Americans from every band in the political spectrum is that Americans
detained as “belligerents” under the terms of the NDAA will not be
tried in Article III courts, but will be subject to military tribunals
such as the one currently considering the case of the so-called “Gitmo
Five.” There is not a single syllable of the 2013 NDAA that passed out
of the House Armed Service Committee on Thursday that will guarantee
Americans will be tried in a constitutional court and not a military
Curiously, furthermore, McKeon’s
mark-up ties the fundamental right of habeas corpus not to the
Constitution (or the nearly 900 years of Anglo-American law), but to the
Authorization for the Use of Military Force where the protection of
that right is severely diminished. Such sleight of hand should not go
unnoticed, particularly when it is performed by one who flies under the
Fellow Republican and
consistent constitutionalist Representative Justin Amash (Mich.) is
calling McKeon (and others of his party) on the carpet for allowing such
an infringement to occur on their watch.
Amash made a crucial distinction between the right to know why one is
being held (habeas corpus) and the fact that one is being held in the
“The problem isn’t Habeas; the problem is Americans being held without charge or trial forever,” Amash told The Hill.
a laudable effort to prevent such a scenario from being perpetuated,
Amash has joined forces with Democratic Representative Adam Smith
(Wash.), and together they are offering an amendment to the bill that
would explicitly repeal the indefinite detention provisions, as well as
one that would allow the prisoners to be transferred into the custody of
Currently, the Smith-Amash Amendment (officially styled the “Due Process and Military Detention Amendments Act”)
has 60 sponsors from both major political parties. Given the noble aim
of the Smith proposal, all constitutionalists should be de facto
co-sponsors of the bill, as well.
The Smith-Amash amendment identifies and closes two very large gaps still present in the NDAA.
the Smith-Amash Amendment explicitly forbids the indefinite detention
of suspects, as well as the conducting of the trials of such suspects
before military tribunals. The language in this amendment makes it clear
that any individual arrested in the United States on charges stemming
from the NDAA or the AUMF would be tried in a civilian court and be
afforded the complete catalog of constitutional protections.
the Smith-Amash Amendment repeals that section of the NDAA that
foreigners suspected of committing terrorist acts be held in military
custody, unless they have been granted a specific waiver from the
While the broad strokes of the NDAA are by now likely familiar to readers, a brief overview is in order.
of what is contained in the over-500-page 2012 version of the NDAA is
inimical to liberty. For example, under the provisions of the
aforementioned Section 1021, the President is afforded the absolute
power to arrest and detain citizens of the United States without their
being informed of any criminal charges, without a trial on the merits of
those charges, and without a scintilla of the due process safeguards
protected by the Constitution of the United States.
order to execute this immense power, the NDAA unlawfully grants the
President the absolute and unquestionable authority to deploy the armed
forces of the United States to apprehend and to indefinitely detain
those suspected of threatening the security of the “homeland.” In the
language of this legislation, these people are called “covered persons.”
of promises to the contrary, the language of the NDAA places every
citizen of the United States within the universe of potential “covered
persons.” Any American could one day find himself or herself branded a
“belligerent” and thus subject to the complete confiscation of his or
her constitutional civil liberties and nearly never-ending incarceration
in a military prison.
On this point, it is
important to understand that although a member of Congress would
describe himself as “conservative,” that is no reason to rely on his
opposition to the NDAA. Take for example the following comments from
Republican Representative Jeff Landry of Louisiana when asked by The Hill about his position on the provisions in question.
“Do I believe that language and the NDAA is a perfect protection of the liberties we cherish? Probably not,” Landry admitted.
having this debate because there’s a threat,” he continued. “If the
threat was eliminated there would be no need for the debate.”
the D.C.-based blog reports that “Landry opposes Smith’s amendment”
because he doesn’t want to completely divest the president of power to
apprehend suspected terrorists “on American soil.”
Landry summarized what he assumes is the crux of the concern over the
NDAA and its obliteration of constitutional civil liberties.
people were looking for was to ensure that there was some sort of due
process when the executive detains someone,” Landry said.
Landry is missing the point. It isn’t “some sort of due process” that
the people want before citizens can be captured and hauled away to
Guantanamo. American citizens demand that the full panoply of due
process rights be applied to each and every suspect before any sort of
permanent imprisonment is imposed.
That is to
say, there must be reasonable cause to believe someone committed a
crime, there must be charges, there must access to an attorney to aid
the suspect in presenting a defense to those charges, there must be a
trial before an impartial judge (in a civilian court of law), and there
must be a jury of one’s peers considering the evidence presented at that
trial. Finally, there must be a sentence imposed according to
applicable guidelines and the accused must have the opportunity to
appeal his conviction.
That is what the American people want.
on the NDAA for Fiscal Year 2013 will begin this week, giving concerned
Americans time to contact their elected representatives and inform them
they will not reelect anyone who votes for the NDAA or against the
Photo: Representatives Adam Smith (left) and Justin Amash
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