Senate Unanimously Passes 2013 NDAA; still allows for military detention within the US
Just after 5:00 p.m. Tuesday, the Senate did it again. By a vote of 98-0 (two senators abstained) lawmakers in the upper chamber approved the Fiscal Year 2013 National Defense Authorization Act (NDAA). Not a single senator objected to the passage once again of a law that purports to permit the president, supported by nothing more substantial than his own belief that the suspect poses a threat to national security, to deploy the U.S. military to arrest an American living in America.
The law allowing for indefinite detention of Americans without trial has been stripped from next year’s National Defense Authorization Act, but tweaks to the NDAA don’t mean the possibility of extrajudicial imprisonment has been eliminated for all.
When US President Barack Obama signed into law the annual defense spending bill for 2012, he acknowledged that he had reservations about a provision that allows the government to lock up any United States citizen without providing them with a trial in a court of law. Although Pres. Obama swore to not abuse that clause in such a way that Americans would be at risk of imprisonment, the White House has relentlessly challenged in federal court all efforts to remove the controversial indefinite detention clause from the NDAA. The US Senate has now approved a draft of the defense spending bill for the next fiscal year, and with it has signed off on a promise to ensure habeas corpus for all American citizens. Legal protection is not provided for unlawful immigrants and aliens, however, opening up the possibility of domestic military enforcement of draconian laws.
When the Senate voted unanimously to approve the 2013 NDAA on Tuesday, they gave the go-ahead to an amendment introduced by Sen. Dianne Feinstein (D-California) that on the surface resembles a surefire fix to the previous year’s provision.
“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 apprehended in the United States, unless an Act of Congress expressly authorizes such detention,” reads the amendment, which is co-sponsored by Senators Mike Lee (R-Utah) and Rand Paul (R-Kentucky)
The language, Sen. Feinstein says, clarifies that no US citizen can be detained for war crimes without be charged and taken to trial, ideally allowing critics of the current NDAA to sign a breath of relief. Upon further inspection, though, Sen. Feinstein’s fix still leaves the door open for Congress to consider indefinite detention without due process for other residents of the US and may allow for the usage of American troops to enforce the law on American soil.
“It might look like a fix, but it breaks things further. Feinstein’s amendment says that American citizens and green-card holders in the United States cannot be put into indefinite detention in a military prison, but carves out everyone else in the United States,” explains Chris Anders, an attorney with the Washington, DC legislative office of the American Civil Liberties Union.
According to Anders, the Feinstein Amendment has at least three serious faults that could pose problems starting next year. “It would not make America off-limits to the military being used to imprison civilians without charge or trial,” he writes, “…because its focus on protections for citizens and green-card holders implies that non-citizens could be militarily detained.”
“The goal should be to prohibit domestic use of the military entirely,” writes Anders. “That’s the protection provided to everyone in the United States by the Posse Comitatus Act. That principle would be broken if the military can find an opening to operate against civilians here at home, maybe under the guise of going after non-citizens. This is truly an instance where, when some lose their rights, all lose rights – even those who look like they are being protected.”
Additionally, Anders says the Feinstein Amendment is inconsistent with the US Constitution because that document declares due process for everyone within the country, including immigrants who have not been granted legal citizenship. It could also, he fears, set dangerous precedents for Congress.
“[T]hat the military may have a role in America itself, that indefinite detention without charge or trial can be contemplated in the United States and that some immigrants can be easily carved out of the most basic due process protections,” are all possible consequences of enacting the proposed NDAA, Anders says.
Speaking to Raw Story about what could come to the country under the Feinstein Amendment, Anders adds that “nobody really knows” since Congress’ interpretation of the bill could differ from that of the ACLU and other anti-NDAA advocates. Should Congress decide to decipher the language in one way, he says, grave implications could occur.
“The Feinstein amendment may imply that the military has the right to act within the United States. There’s been a longstanding principle that the Constitution applies to all persons in the United States. We don’t divide up who gets rights by citizenship status. Nobody gets thrown under the bus in terms of due process in the United States,” he says.
The ACLU, Amnesty International and the Center for Constitutional Rights are just a few of the 20 organizations who appealed the Feinstein Amendment’s supporters in the days before this week’s vote in hopes that lawmakers would reconsider. With the Senate unanimously approving the NDAA by a vote of 98-0, though, nothing short of a veto from the White House is likely to stop the defense spending bill from passing in its present form.
That doesn’t mean that an executive veto is out of the question, though. Just last week, the White House said that they opposed the latest incarnation of the NDAA and would recommend an official veto to the president should the bill pass. It’s not the indefinite detention discussion that is spurring their argument, however, but one related to another heated issue brought up in the bill: Guantanamo Bay.
As reported by the online Huffington Post:
Among the issues the president’s Office of Management and Budget singled out were some of the controversial military detainee provisions, although it did not take issue with language passed in last year’s bill that lets the military hold American civilians without trial.
Instead, the White House complains about ongoing restrictions on its ability to transfer prisoners from the Guantanamo Bay, Cuba, prison base for terrorism suspects, which are reasserted in section 1031 on the bill.
Despite promises to shutter the notorious detention facility, this year it celebrated its 10th year of operation.
Ostensibly, raising the bar for transfer of prisoners from Gitmo riles the president, thus his threat to reject the NDAA.
As for his power, that is rightly set forth in Article II of the Constitution, not in the NDAA or any other act masquerading as law passed by an oligarchy masquerading as the people’s representatives.
The president, Congress, and the courts would be wise to remember the words of Alexander Hamilton from Federalist, No. 33:
If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed…. But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. [Emphasis in original.]
Undaunted, inveterate warmonger Senator Lindsey Graham (R-S.C.) addressed the Senate following the defeat of the amendment calling for increased restrictions on the transfer of prisoners out of Guantanamo, explaining the reasons for need to deny due process to people he earlier called “crazy bastards.”
“Simply stated, the American people don’t want to close Guantanamo Bay, which is an isolated, military-controlled facility, to bring these crazy bastards that want to kill us all to the United States,” Graham said. “Most Americans believe that the people at Guantanamo Bay are not some kind of burglar or bank robber. They are bent on our destruction. And I stand with the American people that we’re under siege, we’re under attack and we’re at war.”
In the latest version of the NDAA, the US military prison in Guantanamo Bay, Cuba would be essentially forced to remain open throughout 2013, despite President Obama’s renewed pleas to shut down the controversial detention facility for good. Because the most recent draft of the bill includes a measure that will prevent Gitmo detainees from being relocated to other facilities, either in the US or abroad, the White House says Pres. Obama will be asked to reject it.
The measure’s sponsor, Sen. Kelly Ayotte (R-New Hampshire), says that the White House’s efforts to try and distance itself from the ongoing Guantanamo debate by bringing the military prison to a close once and for all will not sit well with American’s eager to see suspected terrorists brought to justice. That claim was echoed in Senate when his measure passed by a vote of 54-to-41 on Thursday.
“The administration may want to close Guantanamo, but the American people do not want foreign terrorists like Khalid Sheikh Mohammed brought to the United States,” Ayotte said.
“Simply stated, the American people don’t want to close Guantanamo Bay, which is an isolated, military-controlled facility, to bring these crazy bastards that want to kill us all to the United States,” added Sen. Lindsay Graham (R-South Carolina). “Most Americans believe that the people at Guantanamo Bay are not some kind of burglar or bank robber,” Graham said. “They are bent on our destruction. And I stand with the American people that we’re under siege, we’re under attack and we’re at war.”
The House of Representatives must now come to terms with the latest draft of the NDAA approved by the Senate. From there, it will be up to Pres. Obama to sign the legislation into law. The ACLU and other groups are recommending a veto on the basis that it will impede the president’s ability to finally close down Gitmo.
Presidents Carter, Reagan, Clinton and George W. Bush have each vetoed an NDAA during their time in the White House.
Read more: http://rt.com/usa/news/ndaa-military-detention-2013-365/
2012-12-06 04:15:46
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