NDAA Double Cross

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?

57 thoughts on “NDAA Double Cross”

  1. to continue, Bradley Manning spent, what, 3 years in tortuous conditions at the Marine facility before before being moved to the Army facility and without any charges being made.Susan Lindauer spent years in prison without charges. She’s probably still be there if she had taken the meds they tried to give her and if she didn’t have a lawyer relative to take on her case. I’m sure there are other cases but we just don’t hear of them.

  2. JoeBob, “Any citizen of the U.S. who is charged with any offense by the United States is entitled to a due process trial.”

    Good comments but the key here is “charged with any offense”. NDAA does not require that one be charged with an offense to suffer indefinite detention.

  3. bettykath,
    No problem with the length!
    I can’t imagine Scalia arguing for a case that takes away due process, but then again, it is Scalia.

  4. I looked her biography up on wikipedia. She was born in 1933 for Gods sake. Not Dogs’ sake. Jeso that is 79 years old or so. Multiply by seven to get dog years. Cant read her own bill she files in Congress. Send her great great grandkids up to Congress to yell in her ear about the Constitution.

  5. 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?

    The old Posse Comitatus which JAG lawyers consider to be a myth now, was a statute of congress that has been watered down over two decades according to the JAG officer I quoted in my comment just up-thread.

    Thus, the only game left is a constitutional challenge.

    This particular S. Ct. does not favor facial challenges, but rather favors as applied challenges.

    I hope that does not mean some American Journalist or academic has to become indefinitely imprisoned by the military in a fact scenario this statute covers before the S.Ct. gets interested.

    But just a word to the wise, a facial challenge is a much more difficult case before the Roberts Court, and one outcome could be that the S.Ct. says “wait for an as applied case.”

  6. Diane Feinstein was on television the other night and being interviewed. She seems real lame brain or perhaps old with dementia. We can not let such a Raygun type thing be excused. She needs to retire to some think tank where they dont have to think but get lots of money for fronting their puss in public in the name of the tank’s sponsors.

    Any citizen of the U.S. who is charged with any offense by the United States is entitled to a due process trial. Those so called tribunials are a farce. Court martials for our military and trials in United States District Courts in the United States, not in bumfuk Cuba for any citizen for any funky offense they dream up with their dream acts.

    Feinstein: pull out now like your father should have at the night of your conception. You are either a lame brain or an overt nazi. It does not take Curley from the Three Stooges to smell a Notsie.

  7. This all ties in with the militarization of the police who are now getting military equipment.

  8. raff, sorry about the length. I should have just counted and named them as retired admirals and generals but I can’t count that high : )

    I don’t know if non-members can go to the link. Maybe I should try it without logging in.

  9. Fee,
    Those government “trojans” have probably already been distributed to my computer.
    Unless I missed it, I don’t think anyone has addressed my question concerning how the Supreme Court would handle this issue if it makes it up to them? I don’t think even Scalia can consider the right to due process anything but original.

  10. rafflaw 1, December 9, 2012 at 4:12 pm

    that is one scary report Dredd.

    Here is a direct link to it: Ariz. Police Say They Are Prepared As War College Warns Military Must Prep For Unrest.

    RE: “That’s the protection provided to everyone in the United States by the Posse Comitatus Act.”

    The reality behind the scenes now, like the Mike S post today about military evangelism, is that they all know that Posse Comitatus is a myth, but unfortunately have not made that well known to the public.

    The link I provide has an article that they hid, but like many I use, was pulled up from the “Wayback Machine.”

  11. The amendment is one of those cosmetic things that is tacked onto something to make it sound OK for the moment, so that it slides past all the censors, and then later, nothing can ever be changed and the way it is explained makes everybody realize they just poured a cup of tea for the devil.

  12. Why is it that the one area of bipartisanship in Congress is erosion of civil liberties? It seems like those jokers can’t get anything else done but the one area I favor gridlock.

  13. When the Senate first looked at the NDAA, Sen Feinstein did an amendment to it that would have kept it from applying to American citizens, but her amendment did not pass. Knowing that, I would think (and hope) that it is more likely that she was at least trying to do the right thing.

    Of course when the NDAA was drafted, you had all these people all over the place saying, ”You people are so stupid and paranoid and such conspiracy theorists. This does NOT pertain the US citizens.” Oh my GOSH all the places I saw that! (If it didn’t I don’t know why Sen Feinstein did an amendment to change that back then–wouldn’t make sense would it!)

    Can’t you remember how back when we were in school it was drilled into us that people always had a right to due process; a trial by their peers. And that everyone had a right to an opinion and to speak that opinion. That was before all the politically correct BS came along. Once that came along they just started doing away with everything.

    No rights to trials anymore if they don’t want to give you one. No rights not to have your property searched and seized with no warning, no warrant–they can kill you, your family, your pets, and it’s all okay. EVEN IF THEY HAVE THE WRONG HOUSE! No rights to assume that if your police go out of control they will be even reprimanded, let alone fired or imprisoned. No rights to be free of cameras filming everything you do. No rights not to have frickin’ drones flying around and even IN your house! No rights to be told which of your foods are grown by insane, greedy GMO people who are trying to kidnap the world’s food supply! No right not to have untested GME mosquitos released into your country to wreak who knows what havoc! No rights treat your family’s illnesses the way you choose. No rights to refuse to have mercury vaccines injected into your children and babies. No rights to drink water without poisonous fluoride in it. No rights to have good access to herbs and people who can tell you how to use them so you wouldn’t have to poison yourselves with Big Pharma’s more lucrative answers that kill people. No rights to be left alone to live and let live.

    The days of people in this country being free and having rights has long disappeared and been replaced by the tramping of jackboots.

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