NDAA 2013 Headed to Full House; Smith/Amash Amendment Offered

As we reported late last week, the House Armed Services Committee passed the latest version of the National Defense Authorization Act (NDAA).

We also informed readers that despite promises to the contrary from Committee Chairman Howard P. “Buck” McKeon (R-Calif.), the provisions of the bill permitting the indefinite detention of American citizens without charge or trial remain intact.

Sometime this week the House will begin deliberating the annual markup of the NDAA, and there is hope that there will be renewed opposition from members of Congress to the most pernicious sections of the bill — those giving the President authority to deploy the armed forces of the United States to arrest and indefinitely detain American citizens apprehended on American soil who are suspected by him of posing a military threat to the security of the homeland.

Even a cursory reading of the revamped version reveals the presence of these most unconstitutional grants of power, despite assurances that the new language is less offensive to our nearly-1,000-year history of enjoying these basic civil liberties.

For example, Section 1033 of the mark-up version passed by the committee is pointed to by McKeon as proof that habeas corpus is protected in the 2013 legislation. Here is the current text of that updated provision:

This section would state that nothing in the Authorization for Use of Military Force (Public Law 107-40) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force (Public Law 107-40).

The double-speak contained in that paragraph is impressive even for a Capitol Hill lawyer.

Read it very closely: The new bill does nothing to prevent the indefinite detention of Americans under the 2013 NDAA; furthermore, it only reiterates that habeas corpus is a right in courts established under Article III of the Constitution. That such a right exists in the courts of the United States has never been the issue. The concern of millions of Americans from every band in the political spectrum is that Americans detained as “belligerents” under the terms of the NDAA will not be tried in Article III courts, but will be subject to military tribunals such as the one currently considering the case of the so-called “Gitmo Five.” There is not a single syllable of the 2013 NDAA that passed out of the House Armed Service Committee on Thursday that will guarantee Americans will be tried in a constitutional court and not a military commission.

Curiously, furthermore, McKeon’s mark-up ties the fundamental right of habeas corpus not to the Constitution (or the nearly 900 years of Anglo-American law), but to the Authorization for the Use of Military Force where the protection of that right is severely diminished. Such sleight of hand should not go unnoticed, particularly when it is performed by one who flies under the “Republican” banner.

Fellow Republican and consistent constitutionalist Representative Justin Amash (Mich.) is calling McKeon (and others of his party) on the carpet for allowing such an infringement to occur on their watch.

Recently, Amash made a crucial distinction between the right to know why one is being held (habeas corpus) and the fact that one is being held in the first place.

“The problem isn’t Habeas; the problem is Americans being held without charge or trial forever,” Amash told The Hill.

In a laudable effort to prevent such a scenario from being perpetuated, Amash has joined forces with Democratic Representative Adam Smith (Wash.), and together they are offering an amendment to the bill that would explicitly repeal the indefinite detention provisions, as well as one that would allow the prisoners to be transferred into the custody of the military.

Currently, the Smith-Amash Amendment (officially styled the “Due Process and Military Detention Amendments Act”) has 60 sponsors from both major political parties. Given the noble aim of the Smith proposal, all constitutionalists should be de facto co-sponsors of the bill, as well.

read full article here NDAA 2013 Headed to Full House; Smith/Amash Amendment Offered