November 30, 2012
In response to widespread outrage over the National Defense Authorization Act passed last year, Congress is said to be working on a more Constitution friendly version of the legislation. The latest version was overwhelmingly approved by the House Armed Services Committee on May 8 and introduced the following week.
“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 NDAA 2012, this is merely 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.
“The biggest thing about the  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 on Thursday. “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 is being portrayed as a savior by offering up language 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 to the NDAA say the effort does not go far enough.
On Thursday evening, 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 explainds.
“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 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 1126) stating 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 last week, 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 comments.
A handful of efforts to make the NDAA constitutionally friendly are little more than a public relations gimmick to silence critics. The NDAA is essential if the government is going to silence critics and disappear activists and other enemies of the establishment.
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.”
The indefinate detention section of the NDAA must be repealed entirely. Anything short of that is treason.