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by Constitution In Crisis, Bill of Rights Defense Committee [BORDC] Newsletter, May 2012, Vol. 11, No. 5
The amendment offered by Reps. Adam Smith (D-WA) and Justin Amash (R-MI) is among the strongest, as is one championed by Rep. Jerrold Nadler (D-NY) and another introduced by Rep. Ron Paul (R-TX). Unfortunately, an amendment authored by Reps. Scott Rigell (R-VA) and Jeff Landry (R-LA), as well as one by Senator Diane Feinstein (D-CA) and Rep. John Garamendi (D-CA), are both counterproductive and could make the NDAA even worse.
US Navy Rear Admiral John D. Hutson (Ret.) wrote an analysis for The Hill, noting that the Smith-Amash amendment, which is also supported by Senator Mark Udall (D-CO),
would ensure that no one within the United States can be indefinitely detained without charge or trial, or tried by legally problematic military commissions. It also reverses an NDAA provision—opposed by virtually every national security expert, even former Bush administration officials—that tries to force our military to take custody of a category of foreign terrorism suspects. The Smith/Udall bill, while far from perfect, is the best available first step towards fixing the NDAA.
Hutson notes that the Feinstein-Garamendi proposal creates a disturbing precedent under which non-citizens could be denied rights long guaranteed to all people under US jurisdiction, and “concedes to the NDAA’s proponents one of their key arguments: that the United States can be considered a ‘battlefield.’”
Meanwhile, the Rigell-Landry proposal would protect rights to habeas corpus that the NDAA never aimed to restrict, diverting focus from the real problems with the law. It’s true that habeas corpus rights have dramatically eroded such that they now offer little more than a procedural speed bump to indefinite military detention, but that erosion is mostly the work of the US Court of Appeals for the DC Circuit, not the NDAA. The Rigell-Landry bill would do nothing to address the issues with the court and would thus have little effect.
Proposals introduced by Reps. Jerrold Nadler and Ron Paul are substantively stronger than the rest. Unfortunately, even though they offer the most principled congressional responses to the military detention controversy, they may never come up for a vote because they lack broad support.
With the intelligence establishment dictating oppressive national security policies in Washington, it will take a movement of millions to restore the rule of law in the United States. If you share BORDC’s concerns about the NDAA and looming specter of indefinite military detention, call your congressional representatives today.
Smith amendment helps address detainee question
by Raha Wala, advocacy counsel, Human Rights First, The Hill, 05/09/12
First, Congress codified the authority of the military to pick up and indefinitely detain without charge or trial individuals suspected of terrorism. No probable cause. No jury trial. No guilt beyond a reasonable doubt.
Although the government had been exercising this authority for a decade in the case of detainees held in Afghanistan and Guantanamo, some proponents of the new NDAA detainee provisions, such as Senator Lindsey Graham (R-S.C.), warned of new threats among us, here at home. To these members of Congress, America is now the battlefield, and anyone determined to have substantially supported terrorism could be subject to lifetime imprisonment without ever facing charges.
…last year’s NDAA debate, included a provision that forces the military to take custody of a category of foreign terrorism suspects, absent a presidential waiver. This mandatory military custody policy is so extreme that it was opposed by virtually every national security expert that looked at it, including former Bush administration officials. The CIA Director opposed it. As did the Secretary of Defense, FBI Director, and Director of National Intelligence.
Retired generals and admirals pointed out that forcing the military to take custody of terrorism suspects would give U.S. armed forces a mission they neither want nor need. Current and former national security professionals emphasized that it simply doesn’t make sense to undermine law enforcement operations for the sake of an ideological belief that terrorism suspects should be in military custody. Though the president issued a policy directive limiting the application of the mandatory military custody provision, it still remains on the books, subject to future abuse.
… the Smith amendment picks up where the Congress failed during the NDAA debate. The Smith amendment would ban indefinite military detention, and military commission trials, within the United States. It would also repeal, in full, the mandatory military custody requirement, and ensure that the military will not be forced to take custody of any terrorism suspects. Importantly, it would put forth civilian courts, established under Article III of the Constitution, as the lawful, appropriate, and time-tested method for handling terrorism threats in the United States.