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All Da King's Men

Kill The NDAA's Indefinite Incarceration Provision

By David King Published: February 25, 2014

From the ACLU, here's what the NDAA is:

The National Defense Authorization Act (NDAA) is a federal law specifying the budget and expenditures of the United States Department of Defense (DOD). Each year's act also includes other provisions, some related to civil liberties.

Also from the ACLU, here's the problem with it:

In December 2011, President Obama signed the 2012 NDAA, codifying indefinite military detention without charge or trial into law for the first time in American history. The NDAA's dangerous detention provisions would authorize the president — and all future presidents — to order the military to pick up and indefinitely imprison people captured anywhere in the world, far from any battlefield. The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally.

I understand taking prisoners of war, and the NDAA's indefinite incarceration provision was intended to pertain to Al Qaeda and others who seek to harm the United States. However, the scope of the NDAA's language is overly broad. It includes American citizens (or rather, it doesn't preclude them), and that is where it smacks head-on into the Constitution. The 5th Amendment in the Bill Of Rights states that "No Person Shall Be...Deprived Of Life, Liberty, Or Property, Without Due Process Of Law", but depriving American citizens of life, liberty, and property without due process of law is exactly what a bipartisan Congress passed and President Obama signed into law. That is clearly unconstitutional, and everyone in Congress who voted in favor of it violated their oath of office. Ditto for the President. They violated Article VI of the Constitution, which states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;” — U.S. Constitution, Article VI, clause 3.

Sadly, President Obama extended the NDAA's indefinite incarceration provision for 2014 for the third year in a row (people tell me he's supposed to be a constitutional expert....doesn't that make him, like, an INTENTIONAL criminal ? Just asking). Lawsuits brought against the NDAA provison have been fought by the Obama administration in court. When a federal judge struck down the indefinite incarceration of U.S. citizens provision - 1021(b)(2) of the 2012 NDAA, the Obama administration's lawyers appealed. The President's Department Of Justice argued that the indefinite incarceration provision was simply an extension of the Authorization To Use Military Force (AUMF), which initially passed Congress and was signed by President Bush post 9/11.

Congress passed the NDAA by a wide margin. The 2014 version passed the Senate by a vote of 84-15. Here's a list of the Senators who voted against it - Barrasso (R-WY), Coburn (R-OK), Corker (R-TN) Crapo (R-ID), Cruz (R-TX), Enzi (R-WY), Flake (R-AZ), Lee (R-UT), Merkley (D-OR), Paul (R-KY), Risch (R-ID), Sanders (I-VT), Sessions (R-AL), Shelby (R-AL), Wyden (D-OR). Senator Ted Cruz issued the following statement:

"Today I voted against the National Defense Authorization Act. I am deeply concerned that Congress still has not prohibited President Obama’s ability to indefinitely detain U.S. citizens arrested on American soil without trial or due process.

"The Constitution does not allow President Obama, or any President, to apprehend an American citizen, arrested on U.S. soil, and detain these citizens indefinitely without a trial. When I ran for office, I promised the people of Texas I would oppose any National Defense Authorization Act that did not explicitly prohibit the indefinite detention of U.S. citizens. Although this legislation does contain several positive provisions that I support, it does not ensure our most basic rights as American citizens are protected..."

Bingo. Kudos to Cruz and the others who voted 'no'. It's too bad there weren't more of them to insist the offensive provision be removed from the NDAA before it was passed.

In the House, the latest NDAA passed by a vote of 350-69, with 50 Democrats and 19 Republicans voting 'no'. Where's that House Republican obstructionism when you need it ? Aren't these the guys who keep telling us they are upholding the Constitution ? Riiiight.

More importantly, how could 434 members of Congress vote in favor of a bill that contains unconstitutional language ? Maybe they really don't read the bills they pass.

Somes states have passed anti-NDAA bills combating the indefinite incarceration of U.S. citizens, but where is the legislation from Congress ? The last I could find was a 2012 effort to remove the provision from the NDAA, but that was removed in committee. It was replaced with language that stated indefinite incarceration shouldn't replace habeas corpus. President Obama has also stated that he will not use the NDAA provision to incarcerate U.S. citizens without due process,  but why does Congress keep leaving this window for abuse open ? Why does the President keep leaving this window for abuse open ? Could it be because they WANT it to be left open ? If not, it would have been removed by now. Merely having the President and Congress SAY they won't abuse the law isn't nearly enough of a guarantee. Our government has abused the law too many times before. This has to be stopped cold.

You can find several anti-NDAA petition sites here if you agree this must be changed. Or contact your congressperson.

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