Infowars_Magazine-Jan_2013.pdf

Following widespread outrage over the National
Defense Authorization Act (NDAA) and its notorious
Section 1031 passed into law last year,
in December Congress unanimously passed
what it describes as a more Constitution-friendly version
of the legislation.
On the last day of 2011, President Obama signed
the 2012 version. It codified indefinite military detention
without recourse to the habeas corpus right to be
brought before a judge in a civilian court.
Habeas corpus has its origins in English common law
and was first codified in the Habeas Corpus Act 1679.
The writ is based on the principles of the Magna Carta
proclaimed in 1215. The Magna Carta, or Great Charter,
limited the legal action brought by the King of England
against his subjects. Obama’s NDAA is the first time in
American history that military detention of civilians has
been codified into law.
During his presidential run against Republican John
McCain, Barack Obama promised to reinstate the habeas
corpus rights seriously undercut by the Bush administration.
Following the attacks on September 11,
2001, the Bush administration imprisoned hundreds of
Muslims, whom the government said had associated
with terrorists, in Guantanamo Bay and other prisons
without trial or judicial review. After the election,
however, Obama did not follow-up on his campaign
promise, and Guantanamo remains open.
In response to outrage over the 2012 NDAA bill that
Obama promised to veto – only to sign it into law after
the opposition was blindsided, Congressman Scott
Rigell and 26 other members of the House introduced
H.R. 4388, the Right to Habeas Corpus Act, claiming
the bill would protect the Sixth Amendment right of
all Americans.
“This year, through the incorporation of the Right to
Habeas Corpus Act, the bill makes clear beyond a shadow
of a doubt that every American will have his day in
court,” a press release issued by the Armed Services
Committee states.
Is the NDAA 2013 an improvement over the previous
version? At first glance, it would seem so. Consider the
following clause included in the bill:
“Nothing in the AUMF [Authorization for the Use of
Military Force] or the 2012 NDAA shall be construed
to deny the availability of the writ of habeas corpus or
to deny any Constitutional rights in a court ordained or
established by or under Article III of the Constitution for
any person who is lawfully in the United States when
detained pursuant to the AUMF and who is otherwise
entitled to the availability of such writ or such rights.
However, according to Bruce Afran, a lawyer for a
group of journalists and activists suing the government
over the 2012 NDAA, this is little more than
smoke and mirrors.”
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), detained citizens have no way to gain
access to lawyers, family or a civilian court after they
are detained by the military. In other words, the supposed
improvement is meaningless.
“The biggest thing about the [2012] NDAA was
that you weren’t getting a trial […] Nothing in here
says that you’ll make it to an Article III court so it literally
does nothing,” Dan Johnson, founder of People
Against the NDAA, told Business Insider. “It’s a
bunch of words, basically.”
“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.”
Although Kentucky Senator Rand Paul was portrayed
as a savior after he offered language to be included in
“THE USA HAS ESSENTIALLY
BEEN DECLARED AN ACTIVE
WAR ZONE [...] WHERE
OUR MOST FUNDAMENTAL
CONSTITUTIONAL RIGHTS ARE
UNDERCUT.”
the 2013 version of the NDAA that would “affirm the
Sixth Amendment of the Constitution and limit the
indefinite detention of Americans,” more than a few
observers of his co-sponsored amendment said the effort
did not go far enough. It was, they argued, more
meaningless verbiage.
“[The] Senate voted on Amendment No. 3018 to
the National Defense Authorization Act sponsored
by Sens. Dianne Feinstein (D-Calif.) and Mike Lee
(R-Utah), and co-sponsored by Sen. Rand Paul, which
protects the rights prescribed to Americans in the
Sixth Amendment of the Constitution with regard to
indefinite detention and the right to a trial by jury,”
Paul’s Senate web page explains.
“Senator Paul’s amendment – for all the good that
it does – doesn’t go far enough. Read the text of the
proposal again. There is not one word of repeal or
www.prisonplanet.com
abolition or revocation of the indefinite detention of
Americans from the NDAA,” writes Joe Wolverton for
the New American.
A previous attempt to placate critics of the NDAA
resulted in the Gohmert Amendment (House Amendment
No. 1126) which states that the NDAA will not
“deny the writ of habeas corpus or deny any Constitutional
rights for persons detained in the United States
under the AUMF who are entitled to such rights.”
“This amendment, like the one offered by Senator
Paul [...] displays an indefensible use of vague language
that would make it vulnerable to challenge in
any court in any state in the Union, but somehow adds
to its appeal among the Republicans in Congress,”
Wolverton explains.
Others take a far more ominous view of the latest
version of the NDAA. In early December, Blake Filippi
of the Tenth Amendment Center was interviewed
by The Washington Times. Filippi said that under the
NDAA, the Patriot Act and similar legislation, “the
USA has essentially been declared an active war zone
[...] where our most fundamental constitutional rights
are undercut. What this means is that the President
has been granted powers over the domestic citizenry
that are normally reserved for active battlefields.” In
addition to effectively striking down the Sixth Amendment,
Section 1021 of the NDAA nullifies Posse Comitatus,
the post-Reconstruction-era ban on the military
engaging in civilian police duties.
Filippi said the 2013 NDAA is a monster in waiting.
The legislation effectively destroys any protection afforded
by the Constitution and the Bill of Rights: “I
believe that when war comes home – when allegations
of domestic terrorism are used to deny fundamental
Constitutional rights – our Constitutional Republic faces
the biggest difficulties,” he warned. “For instance,
Article II Section 9 requires that Congress suspend the
writ of habeas corpus for indefinite detention to be legal.
That has not occurred. Yet, Congress still purports
to imbue the President with the authority for domestic
indefinite detention. What good is the Constitution if
Congress and the President purport to be above it?”
The bottom line, Bruce Afran said, is that the latest
iteration of the NDAA “is still unconstitutional because
it allows citizens or persons in the U.S. to be held in
military custody, a position that the Supreme Court
has repeatedly held is unconstitutional.”
“As the Hill reported, Senators Lindsey Graham,
R-S.C., John McCain, R-Ariz., and Carl Levin, D-Mich.,
all claim that Congress’ 2001 Authorization for Use of
Military Force does authorize the detention of citizens,
even in the U.S.,” ProPublica noted following the passage
of NDAA 2013.
In other words, the hurried amendments and attempts
to uphold habeas corpus are little more than a
mess of pottage.
As of late December, the 2013 Senate bill still needed
to be reconciled with the version passed by the Senate
in 2012. The House version, however, does not contain
an amendment addressing the detention section of the
legislation. Short of explicitly addressing the serious
flaws of 2013 NDAA, the military has little incentive
to make sure detained Americans receive their habeas
corpus rights as stated in Article I, Section 9, Clause 2
of the Constitution.
Kurt Nimmo is the editor at Infowars.com and the
author of “Another Day in the Empire: Life in Neoconservative
America.”
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