First a bit of history behind the allegations that NDAA 2012 codified the President’s authority to detain U.S. citizens without trial…
In 2011 the House and Senate each passed separate versions of the National Defense Authorization Act (NDAA) for fiscal year 2012. Eventually the two bills were reconciled into one bill, H.R. 1540, which was signed into law on New Years Eve, 2011 by President Obama. Although NDAA is passed every year, this particular bill drew a lot criticism from people concerned about the government’s disregard for individual liberty and freedoms guaranteed by the Bill of Rights. Of course many dismissed the complaints as rants from conspiracy nuts. So what is the truth? Did H.R. 1540 secure for president the power to indefinitely detain U.S. citizens he deems a threat or are we protected under the 5th and 6th Amendments of the U.S. Constitution?
It all started in June of 2011, when the original NDAA Senate bill, S. 1253, was introduced to the Senate by Senate Armed Services Committee Chairman Carl Levin (D-Michigan). In it were two sections, 1031 & 1032 which discussed the President’s authority to detain enemy combatants. Section 1031 contained a specific limitation that stated the authority of the President to detain did not extend to the detention of citizens or lawful resident aliens of the United States.
S. 1253, Section 1031, Subsection d [PDF]
(d) CONSTITUTIONAL LIMITATION ON APPLICABILITY TO UNITED STATES PERSONS.—The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States except to the extent permitted by the Constitution of the United States.
Unbelievably this section was removed in the subsequent version of the bill, S. 1867 and it remained absent from the final bill, H.R. 1540. So who wanted it removed and why?
Here are portions of a transcript from the Senate floor on November 17, 2011 where Senator Carl Levin is presenting S. 1867, the revised NDAA, to the Senate.
“We were delayed in getting this year’s bill to the Senate floor by two issues that have arisen since the time the Armed Services Committee approved the first version of this bill, S. 1253, in late June.
“The administration and others expressed misgivings about the detainee provisions in the initial bill, although the provisions in our initial bill represented a bipartisan compromise that was approved by the committee on a 25-to-1 vote. Many of these concerns were based on misinterpretations of the language in that bill; nonetheless, we have worked hard to address these concerns.”
It was President’s administration who wanted the language which limited his power to detain U.S. citizens removed from the bill! In fact he threatened to veto the bill, not because it allowed detention but because it threatened to end his authority to do so.
Levin goes on to say…
“…the new bill would modify the detainee provisions to address concerns and misconceptions about the provisions in our initial bill. In particular, the new bill first modifies section 1031 of the bill, as requested by the administration, to assure that the provision that provides a statutory basis for the detention of individuals captured in the course of hostilities conducted pursuant to the 2001 authorization for use of military force, the AUMF, to make sure that those provisions and that statutory basis are consistent with the existing authority that has been upheld in the courts and neither limits nor expands the scope of the activities authorized by the AUMF.”
Levin’s video statements on the floor of the Senate…
So it’s clear that President Obama believed he already had the power to detain American citizens without trial under PUBLIC LAW 107–40, “Authorization for Use of Military Force” (AUMF), which was signed into law by President Bush on September 18, 2001.
I won’t debate whether the 2001 AUMF indeed provides the president with such power, suffice to say that the language in S. 1253 would have removed it. It doesn’t really matter for this article. It’s abundantly clear that Obama believed he had detention power and acted to protect it by removing the language from S. 1253 that he and his administration believed jeopardized it. So, as far as I can tell he still thinks he has it. If you care to disagree, perhaps you can explain to me why he would feel the need to promise he wouldn’t detain U.S. citizens in his signing statement on December 31, 2011.
“The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.”
See he’s actually defending his his power grab. He doesn’t have reservations about the fact that the bill allows for the detention of U.S. citizens without a trial, he has reservations that the bill might regulate his authority to detain anyone he wants.
But that’s not really the evidence I was eluding to. He goes on to say…
“Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, 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.”
There you go. He’s laying out the proof for why he can detain U.S. citizens. He demanded Congress affirm that power in NDAA, but he promises us that he won’t use it.
For further evidence consider the fact that just last week (May 2012) A preliminary ruling by U.S. District Court Judge, Katherine Bolan Forrest, serving on the United States District Court for the Southern District of New York, found the NDAA likely to be unconstitutional, striking down infinite detention and prohibits its enforcement pending a permanent ruling.
The judge also ruled, as the alternative media has been reporting all along only to be dismissed as ‘conspiracy theorists’, that the language in the bill is so broad that NDAA can be applied for reasons well beyond the original purpose of fighting Al-Qaeda terrorist.
I don’t know about you but the last time I checked, our rights as Americans, do not stem from the mere promises of kings. We’re protected from such authority by the Bill of Rights. The 5th and 6th Amendments makes it quite clear that any person in the United States has the right to a trial when they are accused.
V. Provisons concerning prosecution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
VI. Right to a speedy trial, witnesses, etc.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
So where is Congress in all of this? Why is no one standing up for the Constitution and protecting our rights? Well, I know one man who was fighting this bill, Ron Paul. Read below or watch here.
Mr. Speaker, I rise today to introduce a very simple piece of legislation to repeal the infamous Section 1021 of the National Defense Authorization Act, quietly signed into law by the president on New Year’s Day.
Section 1021 essentially codifies into law the very dubious claim of presidential authority under the 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 US military acting as a kind of police force on US 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. A great man named Solzhenitsyn became the hero of so many of us when he exposed the Soviet Union’s extensive gulag system. Is this really the kind of United States we want to create in the name of fighting terrorism?
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 two 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 even said about American citizens picked up under this section of the NDAA, “When they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.'” Is this acceptable in someone one who has taken an oath to uphold the Constitution?
Mr. Speaker, of course I recognize how critical it is that we identify and apprehend those who are suspected of plotting attacks against Americans. But why do we have so little faith in our justice system? Have we not tried in civilian court and won convictions of hundreds of individuals for terrorist or related activities? I fully support our continuing to do so, but let us not abandon what is so unique and special about our system of government in the process.
I hope my colleagues will join my effort to overturn the shameful Section 1021.
So I said all that to say this; The 2013 NDAA was just passed in to law and already there is more controversy brewing over the vagueness of the language used in this version to supposedly protect Americans.
Ron Paul released a statement this week where he discussed shortcomings of the new NDAA.
So it seems we aren’t out of the woods yet.
Ron Paul 2012!