Just Before Christmas the U.S. Senate Voted to Reauthorize the NDAA - With its Infamous and Unconstitutional "Indefinite Detention" Section 1021

Regrettably on the Friday before Christmas 2012 the United States Senate passed the National Defense Authorization Act (NDAA) for 2013 by a vote of 81-14 - thus continuing the assault on our Constitutional rights in the name of this endless "War on Terror." Senator Rand Paul (R-KY) was right to call it an "abomination."

Through passage of the NDAA of 2013, the U.S. Senate reauthorized the notorious "indefinite detention" section of the NDAA of 2012. Section 1021 had expanded the authority provided by the Authorization of Use of Military Force Act of 2001 (AUMF) for the U.S. military to seize, not just actual "enemy combatants" as the AUMF authorized, but also persons suspected of "supporting" al-Qaeda, the Taliban or "associated forces" and to detain such persons indefinitely without charge or trial. Most disturbingly the NDAA does not include a provision prohibiting the indefinite detention of U.S. citizens under Section 1021.

In late November the U.S. Senate had passed the Feinstein/Lee Amendment to the NDAA of 2013 by a vote of 67 to 29. The Feinstein/Lee Amendment simply stated that the AUMF and the NDAA or any other Act of Congress, "...shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention." This Amendment, although seriously flawed, was at least an attempt to improve the NDAA by ensuring certain Constitutional rights to U.S. citizens subject to indefinite detention.

The House/Senate Conference Committee led by U.S. Senator John McCain, convened to reconcile the House and Senate versions of the NDAA of 2013, rejected the Feinstein/Lee Amendment and replaced it with language stating nothing in the AUMF or NDAA, "shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws."

The final language is a legislative sleight-of-hand. First, this language adds no legal protections when it says the AUMF and NDAA will not be used to deny the writ of habeas corpus. That U.S. citizens have the right to the writ of habeas corpus to challenge the basis of their indefinite detention is already the law of the land; and a Congressional act purporting to deny that right would be struck down by the courts as unconstitutional. Second, the language says these statutes will not be used to deny any other Constitutional rights. But, neither the U.S. Congress nor the U.S. Supreme Court has recognized any other Constitutional rights afforded U.S. citizens subject to indefinite detention under the AUMF.

The U.S. Supreme Court has addressed the issue of the indefinite detention of U.S. citizens under color of authority of the AUMF prior to the even more expansive affirmation of government power that would come later under Section 1021 of the NDAA. In Hamdi v. Rumsfeld, a plurality of the U.S. Supreme Court in 2004 afforded Mr. Hamdi, a U.S. citizen being indefinitely detained on U.S. soil by the U.S. military under authority of the AUMF, with only the writ of habeas corpus to challenge the factual basis of his military detention. The Court, in fact, denied Mr. Hamdi other important Constitutional rights he should otherwise have been entitled to as a U.S. citizen.

In response to the Feinstein/Lee Amendment providing additional Constitutional rights to U.S. citizens subject to indefinite detention, the House/Senate Conference Committee instead codified the minimalist protection recognized by Hamdi and failed or refused to expand that protection to include any additional protections enshrined in the Constitution including among others the right to bail, the right to notice of the charge, the right to an attorney, the right to a trial and the right to confront witnesses. Thus, this Congress has shown it intends to afford no further Constitutional protections to U.S. citizens subjected to indefinite detention.

The final language provides no real, additional and much-needed legal protection to U.S. citizens subject to indefinite detention. The solution to the legal dilemma caused by the AUMF and the NDAA is for the U.S. Congress to repeal the AUMF and end this endless "War on Terror," and to repeal section 1021 of the NDAA. Congress should also pass a law affirming that U.S. citizens suspected of making war against the U.S. or of giving aid or comfort to our enemies should be treated as the Constitution requires - arrested only upon probable case, charged with treason and prosecuted in civilian, criminal courts and afforded the full array of "due process" rights enshrined in our Constitution.

Regardless of how heinous the charge, U.S. citizens must not be left to languish in military custody indefinitely without charge or trial or worse simply summarily executed as President Obama has done. Remember Senator Lindsey Graham (R-SC) shouting at a hypothetical detainee on the floor of the U.S. Senate during last year's debate on the NDAA, "And when they say, 'I want my lawyer,' you tell them, 'Shut up.' You don't get a lawyer..." That Senatorial derision of the Constitutional rights of U.S. citizens should send shivers down the spine of every American.

Let us act now to urge President Obama to veto the reauthorization of the NDAA and thus stop this latest assault on our freedoms, our liberties and our Constitutional Republic.


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