December 20, 2012
On Tuesday, Congress removed a provision from 2013 NDAA that claimed to protect American citizens from unconstitutional detention by the military. The effort was spearheaded by Arizona Sen. John McCain.
“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,” the provision declared.
The amendment was added by Sen. Dianne Feinstein. The House version of the legislation, however, did not contain language protecting citizens from detention. It was removed after a conference committee from both chambers worked out a unified measure.
“The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional,” said Kentucky Sen. Rand Paul.
“I voted against NDAA in 2011 because it did not contain the proper constitutional protections. When my Senate colleagues voted to include those protections in the 2012 NDAA through the Feinstein-Lee Amendment last month, I supported this act,” Sen. Paul continued. “But removing those protections now takes us back to square one and does as much violence to the Constitution as last year’s NDAA. When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.
“Saying that new language somehow ensures the right to habeas corpus – the right to be presented before a judge – is both questionable and not enough. Citizens must not only be formally charged but also receive jury trials and the other protections our Constitution guarantees. Habeas corpus is simply the beginning of due process. It is by no means the whole.
“Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience. When I entered the United States Senate, I took an oath to uphold and defend the Constitution. It is for this reason that I will strongly oppose passage of the McCain conference report that strips the guarantee to a trial by jury.”
In November, we reported that the amendment was essentially meaningless because there are no established rules allowing a citizen to exercise the right to a civilian trial, as guaranteed by the Constitution (specifically, the Sixth Amendment) and detained citizens have no way to gain access to lawyers, family or a civilian court after they are detained by the military.
Bruce Afran, a lawyer for a group of journalists and activists suing the government over the NDAA 2012, said the provision in 2013 NDAA in fact specifies military detainment.
“The new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF]. The original (the statute we are fighting in court) never went that far,” Afran explained. “Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S.”
“It’s a bunch of words, basically,” Dan Johnson, founder of People Against the NDAA, told Business Insider.