Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

When United States District Judge Katherine Forrest blocked the implementation of Section 1021 of the infamous National Defense Authorization Act in May of this year, I thought that legal civilians of all stripes were saved from being at risk of imprisonment without trial or due process. However, an appeals court stayed Judge Forrest’s injunction and the appellate court has allowed the indefinite detention provision to be reinstated during the appeal time frame.  Business Insider

Naomi Wolf of the Guardian explains why a group of journalists sued to block the implementation of Section 1021 in the first place. “As I reported here, last spring a group of journalists and activists including Chris Hedges, Noam Chomsky and Tangerine Bolen, led by counsel Bruce Afran and others, sued President Obama to halt the implementation of Section 1021 in the National Defense Authorization Act (NDAA), which would have allowed for the indefinite detention of Americans without charge or trial. The vague definition of who could be detained included individuals who were seen to provide “substantial support” to al-Qaida’s “associated forces” – wording that provided no protection for journalists interviewing, for example, detainees in Guantánamo, or activists and advocates working with prisoners on their cases.”  Readersupportednews 

The fact that the Obama Administration continues to argue in favor of the indefinite detention provision is sad enough, but now, while the appeal is in process, Senator Diane Feinstein has submitted a suspect amendment to the NDAA.  Her amendment would possibly allow the military to take American citizens and civilian non-citizens into detention and force them into military tribunals, instead of a trial in a United States District Court.  “To make matters worse, a recent development sees the threat of the NDAA on US citizens increasing. Democratic Senator Dianne Feinstein recently introduced an amendment to the 2013 NDAA, which, at first, seems to protect Americans’ due process – but, on closer examination, can be easily misinterpreted. Afran said that the Feinstein amendment “puts a gloss” on a very dangerous situation,

“First of all, the Feinstein amendment does not say that people in the US can’t be put into military custody. It simply says they can’t be taken into indefinite military custody without ‘trial’. If they are taken into military custody, they have to be given a trial of some sort – but not due process in a civil court. The [kind of] trial this refers to would be … military tribunals. So the Feinstein amendment does virtually nothing for American citizens or people in the United States in terms of protection.”

The original law at least left the issue of military detention somewhat ambiguous, but this amendment actually makes matters worse by explicitly allowing the military to take Americans into custody. The measure infringes on Americans’ constitutional rights, asserts Afran, who explained that, since 1861, the US supreme court has written in at least four decisions that “people living in the US – citizens or not – cannot be taken into military custody and denied a trial in civil courts.” Unforunately, should the NDAA go through, this becomes the law of the land: “Our system says a law is in force unless a court says otherwise. The president is considering vetoing the bill. We don’t know if it will be passed by the House, then signed by the president. If it is, we may have to go back to the trial court.”  Readersupportednews

I am truly left wondering if Sen. Feinstein actually understands her own amendment.  I, for one, am amazed and confused that a sitting United States Senator who claims to be a progressive, can put forth an amendment that allows for the possible military arrest and detention of United States citizens and legal civilians and their only recourse would be in a military tribunal system that has been likened to a kangaroo court as applied in the Guantanamo military tribunals.  The ACLU makes their criticism of Sen. Feinstein’s amendment very clear and unambiguous.

“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.

There are three problems with her amendment:

• It would NOT make America off-limits to the military being used to imprison civilians without charge or trial. That’s 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. 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.
• It is inconsistent with the Constitution, which makes clear that basic due process rights apply to everyone in the United States. No group of immigrants should be denied the most basic due process right of all — the right to be charged and tried before being imprisoned.
• It would set some dangerous precedents for Congress: that 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.”  ACLU

It is clear to this author that the hawks in Congress still control the discussion and even those who think they are helping the situation, might actually be making it worse for civilians and journalists. The few true progressives in Congress need to take control of the discussion and return us to the path that protects all civilians legally residing in the United States, whether they are citizens or not.  Journalists also need protection from this kind of repressive and foolhardy legislative attempt to “protect” us from enemies here in this country. Our Founders designed our Federal court system and it works pretty well.  Any attempts to divert civilians into a faulty military tribunal is dangerous and unconstitutional.

What do you think?  It is only your right to due process and to keep the military out of civilian matter that is at stake here!  If the appellate court decision is also appealed to the Supreme Court, how do you think the Roberts Court will handle this matter?