NDAA
2013 - Indefinite detention without trial is back
Lawmakers
in Washington have stripped an amendment from next year’s National
Defense Authorization Act that could have kept the government from
indefinitely detaining US citizens without charge or trial.
Members
of the group "Witness Against Torture" dressed in orange
prison jumpsuits protest against the detention camp at Guantanamo
Bay, along Pennsylvania Avenue in Washington D.C.(Reuters / Larry
Downing)
RT,
19
December, 2012
Senate
Armed Services Committee Chairman Carl Levin (D-Michigan) told
reporters on Tuesday that an amendment to the 2013 defense spending
bill approved only two weeks earlier had been removed. That
amendment, authored by Sen. Dianne Feinstein (D-California), was
pitched as a solution to a clause in the current NDAA that allows for
the indefinite detention of US citizens without due process or habeas
corpus.
Under
the 2012 NDAA, US President Barack Obama is affirmed the power to put
any American citizen behind bars if he or she is suspected of
assisting in any way with forces engaged in hostilities against the
United States or its allies. That provision, Sec. 1021, says any
person who commits a “belligerent
act” against
the country can be imprisoned indefinitely “without
trial” until
the vaguely-worded period of hostilities has come to an end.
Pres.
Obama signed the 2012 NDAA into law on December 31 of last year, but
included a statement at the time that condemned the powers under Sec.
1021 that he awarded himself.
“[M]y
administration will not authorize the indefinite military detention
without trial of American citizens,” the
president wrote on New Year’s Eve. In the months since signing the
current NDAA into law, though, the White House has relentlessly
defended itself in federal court to ensure that it maintains that
ability, despite a federal judge having ruled the clause
unconstitutional.
Sen.
Feinstein’s amendment, approved by the Senate earlier this month,
declared that “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
Feinstein Amendment, co-sponsored by Senators Mike Lee (R-Utah) and
Rand Paul (R-Kentucky), was described as its authors as being a
one-and-for-all fix that would ensure the White House isn’t awarded
the power to indefinite detain Americans in the new year. On Tuesday,
though, Sen. Levin confirmed that members of a House-Senate
conference agreed to remove that clause from the draft.
"The
language of the Senate bill was dropped," POLITICO
quotes Sen. Levin as saying late Tuesday.
According
to POLITICO Pro’s Juana Summers, Levin declined to elaborate and
instead told reporters, "Basically,
I won't interpret that any further.”
Now
with the removal of Sen. Feinstein’s amendment, the latest edition
of the NDAA does not include any safeguards that prevent the
president from ordering the extrajudicial imprisonment of any person
suspected of ties to terrorism.
Because
Sec. 1021 is worded as ambiguously as it is, journalists and human
rights activists’ have asked the Justice Department to ban the
White House from enforcing the powers provided under that clause.
District Judge Katherine Forrest awarded the plaintiffs in a federal
suit against the Obama administration an injunction earlier this year
that keeps the government from using that ability, but a lone appeals
judge placed a stay on that ban as requested by the White House.
Last
year, Sen. Levin admitted before Congress that under the original
wording of the 2012 NDAA, American citizens were excluded from the
provision that allowed for detention. Once Obama’s officials saw
the text though,
“the administration asked us to remove the language which says that
US citizens and lawful residents would not be subject to this
section,” Levin
said.
Now
almost a year to the day later, Sen. Levin has again become the
bearer of bad news to millions of Americans who may be subject to
indefinite detention for another fiscal year.
According
to attorney Carl Levin, a co-counsel for the plaintiffs in the
federal case against the president, “if
any journalist or activist is seen as reporting or offering opinions
about groups that could somehow be linked not just to al-Qaeda but to
any opponent of the United States or even opponents of our
allies” then
they can be detained under the current NDAA.
Journalist
Chris Hedges, the lead plaintiff in that case, has said that the
Obama administration’s insistence on fighting to hold on to those
powers demonstrates the “White
House’s steady and relentless assault against civil liberties, an
assault that is more severe than that carried out by George W. Bush.”
Returning
a request for comment to the Huffington Post on Tuesday, spokesperson
for Senate committee leaders directed reporters to an excerpt
allegedly added to the 2013 NDAA that says neither this year’s
defense bill nor the 2001 Authorization for Use of Military Force
(AUMF) “shall be construed to deny the availability of the writ of
habeas corpus or to deny any Constitutional rights in a court.”
According
to the Obama administration and the appeals judge that granted a stay
on Judge Forrest’s injunction, the AUMF does do exactly that. Under
the 2012 NDAA, the president is reaffirmed his power to indefinitely
detain Americans as granted in the post-9/11 legislation approved
nearly a decade earlier.
Raha
Wala, a lawyer with Human Rights First, tells HuffPo that the new
wording added to the proposed NDAA “doesn’t
do anything of substance.” According
to Wala, who specializes in national security law, "It
doesn't ban indefinite detention within the United States or change
anything about existing law."
Congress
will have to fully accept the latest NDAA before it is sent to the
White House for President Obama to sign. His administration has
suggested they would recommend a veto over a separate clause related
to the Guantanamo Bay military detention center, although a similar
threat was announced last year only for the president to sign the
NDAA into law regardless.
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