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More Responses to NDAA, National Defense Authorization Act

January 25, 2012

War makes for strange bedfellows. Both Democrats and Republicans voted FOR the NDAA and here’s how some Democrats and Republicans are acting AGAINST it.

Due Process Guarantee Act

Senator Dianne Feinstein (D-CA) has introduced S2003,  The Due Process Guarantee Act (full text of S 2003): “…to clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States and for other purposes.”

Representative John Garamendi (D-CA) has introduced a matching bill  HR 3702, Due Process Guarantee Act in the House.  Excerpt: “We must clarify existing law to guarantee the due process rights of every American. It is a foundational principle of our great nation that we are all innocent until proven guilty and that we all deserve a fair trial…”

Local Government Resolutions

El Paso County in Colorado Passes Resolution Nullifying the National Defense Authorization Act
Excerpts from the El Paso County, CO, Resolution to Preserve Habeas Corpus and Civil Liberties:

WHEREAS, Sections 1031 and 1032 (or any other wording as the bill is modified) of the 2011 United States Senate National Defense Authorization Act, Bill Number SB1867, as proposed, provide that in limited circumstances, an American citizen may be detained by our own United States government and by our Armed Forces, which detention could last, without trial until the end of the hostilities currently authorized by the Authorization for Use of Military Force…

“WHEREAS, Sections 1031 and 1032 (or any other wording as the bill is modified) of the National Defense Authorization Bill, SB 1867, jeopardize the fundamental rights of American citizens to remain free from detention without due process and the right to habeas corpus in direct contravention of the guarantees of the Bill of Rights and the United States and Colorado Constitutions…

“BE IT RESOLVED, the Board of County Commissioners of El Paso County, Colorado, is in opposition to Sections 1031 and 1032 of the United States Senate National Defense Authorization Act, and does hereby support the Colorado Constitution and the Constitution of the United States of America and all the freedoms and guarantees as guaranteed by our Founding Fathers and as provided by the brave efforts of the members of our Armed Forces…”

[Sections 1021 and 1022 in the new version of the bill were originally sections 1031 and 1032 in the old version of the bill.]

Repeal of NDAA, Section 1021

Representative Ron Paul (R-TX)  has introduced a bill to have Section 1021 of NDAA  repealed.

Ron Paul (R. TX)  says Section 1021 of the NDAA is so vague that it allows  for the detention of American citizens without trial. Excerpts of speech:

“Section 1021 essentially codifies into law the very dubious claim of presidential authority under 2001 authorization for the use of military force to indefinitely detain American citizens without access to legal representation or due process of law. Section 1021 provides for the possibility of the U.S. military acting as a kind of police force on U.S. soil apprehending terror suspects, including Americans, and whisking them off to an undisclosed location indefinitely, no right to attorney, no right to trial, no day in court. This is precisely the kind of egregious distortion of justice that Americans have always ridiculed in so many dictatorships overseas…

“Some have argued that nothing in Section 1021 explicitly mandates holding Americans without trial, but it employs vague language, radically expanding the detention authority to include anyone who has substantially supported certain terrorist groups or associated forces. No one has defined what those terms mean. What is an ‘associated force?’…

“Sadly, too many of my colleagues are too willing to undermine our Constitution to support such outrageous legislation. One senator [Senator (R- S.C.) Lindsay Graham] even said about American citizens being picked up under this section of the NDAA, ‘When they say I want a lawyer, you tell them, shut up! You don’t get a lawyer!’ Is this acceptable in someone who has taken an oath to uphold the Constitution?” -Jan. 18, 2012

Withdraw authorization from AUMF, Authorization for Use of Military Force, granted by Congress 14 Sept 2001

What Congress must do to Fix the Damage of NDAA, by Stewart Rhodes, oathkeepers.org, 19 January 2012.


“Right now, the President can claim that Congress has authorized him to use war powers and the laws of war against the American people, to kill them, detain them indefinitely, or to try them for pretended offenses against the laws of war.   To remove that supposed power, and stop it from being used on Americans, Congress MUST do the following:

  1. Repeal.  Repeal Section 1021 and 1022 of the NDAA, or at least amend it to clearly state that nothing therein applies to U.S. citizens or lawful residents…
  2. Deny authorization. Congress must clearly state that it does not authorize the President to use military force, military detention, or military trial against US citizens or lawful residents (and amend current laws, including the NDAA as needed to be consistent with that clear statement that Congress does not give such authorization).    Congress may need to say that any prior authorization, including within the 2001 AUMF, whether express or implied,  is hereby withdrawn, or state that Congress now clarifies that it did not intend such authorization in 2001…
  3. Prohibit use of the laws of war against Americans.  Clearly prohibit the use of military force, military detention, or military trial (except as to those Americans serving in the Armed forces) against any US citizen or lawful resident for any crime whatsoever, including any alleged violations of the laws of war.
  4. Mandate a trial for Treason, before a jury. Congress must clearly mandate that a US citizen or lawful resident who is suspected, accused, or even “determined” to be levying war against the United States, or committing any belligerent act, or to be aiding and abetting the enemy, must be indicted by a Grand Jury, pursuant to the 5th Amendment, for the crime of treason and must be tried for treason, before a jury of their peers (as required by Article III, Section 2 and by the 6th Amendment), in a civilian court, with a requirement of two witnesses to the same overt act or confession in open court before conviction, as required by Article III, Section 3.”

Refer to State and US Constitution

Representative Daniel Gordon’s (R-Rhode Island) statement on NDAA, 16 January, 2012:

“Given the fact that the constitutions of Rhode Island and that of the United States are replete with guarantees of individual liberties, right to habeas corpus, and right to freedom of speech, the offending sections of that law are repugnant to the sensibilities of anyone that has a basic understanding of the foundation of this country,”

“When I took the oath of office, I swore that I would support the constitutions of Rhode Island and the United States. And before one single constituent of mine is snatched up in the dead of night, without due process under our laws, they’ll have to pry those documents from my cold dead hands…”

Recall Members of Congress

Montana Launches Recall Efforts Against NDAA Supporters, by Raven Clabough, New American, 24 January 2012


“Montana is just one of nine states with constitutional provisions asserting the right to recall members of its congressional delegation for reasons including a violation of their oath of office…

The other eight states are Arizona, Colorado, Louisiana , Michigan, Nevada, North Dakota, Oregon, and Wisconsin.

“The draft language of Montana’s petition provides the following justifications for recalling the three men [Senator Max Baucus and Senator Jonathon Tester (Democrats) and Representative Denny Rehberg (Republican)]:
1. ‘The Sixth Amendment of the U.S. Constitution guarantees all U.S citizens: a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…’

2. The National Defense Authorization Act of 2011 (NDAA 2011) permanently abolishes the Sixth Amendment right to a jury trial, ‘for the duration of hostilities’ in the War on Terror, which was defined by President George W. Bush as a ”task which does not end’ to a joint session of Congress on September 20, 2001.

“And the recall petition specifically addresses the last-minute additional provision to the NDAA that was used to defend the rest of the bill and assert that the law would not be used against American citizens: 7. Section 1021 reads: ‘Nothing in this section shall be construed to affect existing law.’ But ‘existing law’ may be construed to refer to Padilla v. Rumsfeld in the Fourth Circuit Court of Appeals, which upheld the government’s claim of authority to hold Americans arrested on American soil indefinitely.”

Refer to oath taken to the US Constitution

Oathkeepers: 10 orders we will not obey, oathkeepers.org, 3 March 2009


Oathkeepers: “…a non-partisan association of current and formerly serving military, reserves, National Guard, veterans, Peace Officers, and Fire Fighters…who support and defend the Constitution against all enemies, foreign and domestic…our Oath is to the Constitution.”

3. We will NOT obey any order to detain American citizens as “unlawful enemy combatants” or to subject them to trial by military tribunal.

One of the causes of the American Revolution was the denial of the right to jury trial, the use of admiralty courts (military tribunals) instead, and the application of the laws of war to the colonists. After that experience, and being well aware of the infamous Star Chamber in English history, the Founders ensured that the international laws of war would apply only to foreign enemies, not to the American people. Thus, the Article III Treason Clause establishes the only constitutional form of trial for an American, not serving in the military, who is accused of making war on his own nation. Such a trial for treason must be before a civilian jury, not a tribunal.

The international laws of war do not trump our Bill of Rights. We reject as illegitimate any such claimed power, as did the Supreme Court in Ex Parte Milligan (1865). Any attempt to apply the laws of war to American civilians, under any pretext, such as against domestic “militia” groups the government brands “domestic terrorists,” is an act of war and an act of treason…

“7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext…Whenever a government interns its own people, it treats them like an occupied enemy population…

“8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control” during any emergency, or under any other pretext. We will consider such use of foreign troops against our people to be an invasion and an act of war…

“During the American Revolution, the British government enlisted the aid of Hessian mercenaries in an attempt to subjugate the rebellious American people. Throughout history, repressive regimes have enlisted the aid of foreign troops and mercenaries who have no bonds with the people.

“Accordingly, as the militia of the several states are the only military force contemplated by the Constitution, in Article I, Section 8, for domestic keeping of the peace, and as the use of even our own standing army for such purposes is without such constitutional support, the use of foreign troops and mercenaries against the people is wildly unconstitutional, egregious, and an act of war…”

Some are going even further than NDAA:

Enemy Expatriation Act, EEA

‘Enemy Expatriation Act’ Could Compound NDAA Threat to Citizen Rights, by Ashley Portero, International Business Times, Business & Law, 24 Jan. 2012


“In October [2011], Rep. Charles Dent, R-Pa., and Sens. Joseph Lieberman, I-Conn., and Scott Brown, R-Mass., introduced a slight but powerful amendment to the Immigration and Nationality Act that gives the government the authority to strip a person of their American citizenship if that person is accused or suspected of supporting “hostilities” against the U.S…”

“If the amendment [EEA, S1698, HR 3166] became law, the government could potentially revoke the citizenship of anyone deemed to be supporting hostilities against the U.S., thereby subjecting him or her to the indefinite military detention provision of the NDAA…”

For more, see Action Alerts.