Friday, January 4, 2013

Constitutional rights denied to Americans detained as terrorists

On January 2, 2013, President Obama signed into law the National Defense Authorization Act of 2013 – thus continuing the assault on our Constitutional rights in the name of this endless “War on Terror.”
U.S. Sen. Rand Paul, R-Ky., was right to call it an “abomination.”

On the Friday before Christmas 2012 the Senate passed the NDAA of 2013, which would reauthorize the notorious “indefinite detention” section of the previous NDAA of 2012. Section 1021 had expanded the authority provided by the Authorization of Use of Military Force Act of 2001 (AUMF) for the U.S. military to seize, not just actual “enemy combatants” as the AUMF authorized, but also persons, including U.S. citizens, suspected of “supporting” them or their “associated forces” and to detain such persons indefinitely without charge or trial.

In late November the Senate had already passed the Feinstein/Lee Amendment, which attempted to provide some protections to U.S. citizens. The Feinstein/Lee Amendment stated the AUMF and the NDAA, “… 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.” This Amendment, although seriously flawed, was at least an attempt to improve the NDAA by ensuring certain Constitutional rights to U.S. citizens subject to indefinite detention.

The House/Senate Conference Committee led by Sen. John McCain, convened to reconcile the House and Senate versions of the NDAA of 2013, rejected the Feinstein/Lee Amendment and replaced it with language stating nothing in the AUMF or 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 to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.”

The final language is a legislative sleight-of-hand. First, this language adds no legal protections when it says the AUMF and NDAA will not be used to deny the writ of habeas corpus. U.S. citizens already have the right to the writ of habeas corpus to challenge indefinite detention; a Congressional act purporting to deny that right would be struck down as unconstitutional. Second, the language says these statutes will not be used to deny any other constitutional rights. But, neither the Congress nor the U.S. Supreme Court has recognized any other constitutional rights afforded U.S. citizens subject to indefinite detention under the AUMF.

The Supreme Court has addressed the issue of the indefinite detention of U.S. citizens under color of authority of the AUMF prior to the expansion of government power that would come later under
Section 1021 of the NDAA. In Hamdi v. Rumsfeld, a plurality of the Supreme Court in 2004 afforded Mr. Hamdi, a U.S. citizen being indefinitely detained on U.S. soil by the U.S. military under authority of the AUMF, with only the writ of habeas corpus to challenge the factual basis of his military detention.
The court, in fact, denied Mr. Hamdi other important constitutional rights he should otherwise have been entitled to as a U.S. citizen.

Thus, the House/Senate Conference Committee in effect codified the minimalist protection recognized by the Hamdi case and failed or refused to expand that protection to include additional protections enshrined in the Constitution including among others the right to bail, the right to notice of the charge, the right to an attorney, the right to a trial and the right to confront witnesses. Thus, this Congress, and now President Obama, has shown they intend to afford no further constitutional protections to U.S. citizens subjected to indefinite detention.

The solution to the legal dilemma caused by the AUMF and the NDAA is for the Congress to repeal the AUMF and end this endless “War on Terror,” and to repeal section 1021 of the NDAA. Congress should also pass a law affirming that U.S. citizens suspected of making war against the U.S. or of giving aid or comfort to our enemies should be treated as the Constitution requires – arrested upon probable case, charged with treason and prosecuted in civilian, criminal courts and afforded the full array of “due process” rights enshrined in our Constitution.

Regardless of how heinous the charge, U.S. citizens must not be left to languish in military custody without charge or trial or simply summarily executed as President Obama has done. Remember Sen. Lindsey Graham, R-S.C., shouting at a hypothetical detainee on the floor of the Senate during last year’s debate on the NDAA, “And when they say, 'I want my lawyer,' you tell them, 'Shut up.' You don't get a lawyer ...”

That senatorial derision of the constitutional rights of U.S. citizens should send shivers down the spine of every American. With President Obama’s signature reauthorizing the NDAA that derision continues to be the law of the land.

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