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.

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