14th amendment, 5th amendment, 6th amendment, Dianne Feinstein, due process, HR 1540, indefinite detention, Jonathan Turley, martial law, MDAA, Military Defense Authorization Act, National Defense Authorization Act, NDAA, S1867, terrorism
Update: Jan 2, 2012
President Obama signed the National Defense Authorization Act (NDAA) on Dec. 31, 2011. He attached a signing statement expressing “serious reservations”:
Excerpt: “…I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law…”
[But how will future presidents interpret this aspect of the law? The law gives the President the power to detain Americans without trial but he says he won’t use it. One can’t help but wonder, then, what is the purpose of this law? The President has already gone further than detained a US citizen without due process of accusation and court, he has killed him. So why wouldn’t he use it?]
Carl Levin’s speech in Congress on the Administration’s request to remove language which would have exempted US citizens from the indefinite detainment:
ACLU statement on National Defense Authorization Act (NDAA), Dec. 31, 2011.
The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield…
The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA. In addition, the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war.
Defense Act Affirms Indefinite Detention of US Citizens, by Matthew Cardinal, Commondreams.org, Dec. 30, 2011.
David Gespass, president of the National Lawyers Guild, called it an “enormous attack on the U.S. and our heritage” and a “significant step” towards fascism…
Section 1021(e) says the act does not alter any rights of U.S. citizens, meaning that the Bill of Rights of the Constitution remains intact. It might be up to the courts, however, to eventually determine whether the application of these NDAA provisions to a U.S. citizen would be constitutional.
However, if they are being detained indefinitely with no lawyer, then how does anyone know they are there, to appeal to the civilian courts on their behalf?
Another section says “the requirement to detain a person in military custody under this section does not extend to citizens of the United States”. It does not say military custody is not an option; merely that it is not required.
Section 1021 defines who can be detained by the military.
The definition of “covered persons” under the provision includes not only those who planned, authorized, committed, or aided the terrorist attacks of Sept. 11, 2011, but also “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including anyone who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
Critics say problems with this language include the vagueness of the terms “substantial support”, “belligerent act”, or “directly supported”…
Update- 21 Dec 2011
Jonathan Turley, law professor at George Washington University Law School, on Washington Journal, Dec. 19, 2011, discussing privacy and indefinite detention:
Part 1: surveillance, privacy, GPS tracking, “citizens have no expectation of privacy,” drones in US…
Part2: President asserts power to assassinate Americans on his discretion, arrest Americans without charge or review indefinitely, privacy vrs possible terrorism, privacy vrs anonymity
Part3: necessity of independent judiciary, people need to organize as a citizenry
Update- 20 Dec 2011
Diane Feinstein has introduced, with other Senators, a new bill- the Due Process Guarantee Act of 2011- to clarify the unclearly worded indefinite detention clause in the MDAA, Military Defense Authorization Act of 2011. That Act, known also as S 1867 and HR 1540, passed the Senate on Dec. 1, 2011 and the House on Dec. 14, 2011.
Learn more about this new Due Process Guarantee bill on Thomas and track it on GovTrack.us, when it gets assigned a number. Email and call Senator Feinstein, Senator Boxer and Representative Woolsey and ask them to support it!
Here is some of the wording:
10 ‘‘(b)(1) An authorization to use military force, a dec-
11 laration of war, or any similar authority shall not author
12 ize the detention without charge or trial of a citizen or
13 lawful permanent resident of the United States appre
14 hended in the United States, unless an Act of Congress
15 expressly authorizes such detention.
16 ‘‘(2) Paragraph (1) applies to an authorization to use
17 military force, a declaration of war, or any similar author
18 ity enacted before, on, or after the date of the enactment
19 of the Due Process Guarantee Act of 2011.’’
More on recent history of Senator Feinstein and the issue of indefinite detention:
Every accused citizen deserves a trial – San Francisco Chronicle, Dec 12, 2011
Editorial: A fight for rule of law, even for terror suspects – San Francisco Chronicle, Dec 1, 2011
Feinstein, Rand Paul fight indefinite detentions – San Francisco Chronicle, Nov. 30, 2011
* * *
The US Senate has approved the Defense Authorization Act, S-1867, 93-7, without any amendment exempting US citizens from its coverage.
Holding US citizens without being charged or without a trial and using the military on US soil is against American historical precedent and against our American principles. It’s also against the Constitution!
See which Senators voted for and against it at gov.track.us. Note Senators Boxer and Feinstein voted FOR it.
As of Dec 14, Obama has said that he will NOT veto it, whereas previously he has said he would veto it.
Call Pres Obama and demand that he veto it.
Pres Obama’s Comment line: 202-456-1111. Email President Obama
See more about the specifics of the bill:
Three myths about the detention bill, Glenn Greenwald, Salon.com, Dec. 16, 2011
Obama to sign indefinite detention bill into law, Glenn Greenwald, Salon.com, 15 Dec 2011
Politics Over Principle, New York Times Editorial, 15 Dec 2011
Sen Mark Kirk, R Illinois, on why Senators shouldn’t vote for it (Kirk ended up voting FOR it…)
In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”
UPDATE: Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.
Watch goings-on at Congress at Thomas.gov.
Voice your disapproval of the Defense Authorization Act, S1867, which allows the military to operate in the US, detaining, without charge or trial, individuals who they deem to be “terrorists.”
Phone numbers of Senators
Call your Senators today and express outrage!
Senator Boxer (CA): 1-202-224-3553
Senator Feinstein (CA): 1-202-224-3841
Senator Levin (D-Michigan): 1-202-224-6221
Senator McCain (R-Arizona): 1-202-224-2235
Really Senators, do we have to watch you every minute?