Since the passage of the 2012 National Defense Authorization Act (NDAA) late last year, a transpartisan grassroots outcry has emerged to challenge its dangerous authorities that could allow the government to indefinitely detain in military custody anyone merely suspected (but not proven, or even accused) of terrorist activity.
On May 18, 2012, the US House of Representatives voted on the 2013 National Defense Authorization Act, and amendments to the proposed law. Before ultimately passing the bill in a 299-120 vote, the House considered two very different amendments addressing the NDAA’s indefinite detention provisions.
Representatives Adam Smith (D-WA) and Justin Amash (R-MI) introduced an amendment that would have restored the right to trial to all individuals, regardless of citizenship, detained within the US under the NDAA or 2001 Authorization to Use Military Force (AUMF). When encouraging his colleagues to pass the amendment, Smith argued that federal courts have successfully tried—and convicted—terrorists since the 2001 terror attacks, whereas the unconstitutional military commissions at Guantánamo Bay have failed to do so. Smith also emphasized Congress’s constitutional responsibility to limit the extraordinary expansion of the president’s power.
“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate.
The House rejected the Smith-Amash Amendment by a 182-238 vote.
Instead, the House adopted a competing amendment by Rep. Louie Gohmert (R-TX) by a vote of 243-173. The Gohmert Amendment was a red herring, 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.” Some may perceive the Gohmert Amendment as a step forward, but it actually worsens the effect of the NDAA’s detention provisions.
Habeas corpus (which merely ensures a procedural right to appear before a judge to challenge a detention, without conferring any substantive rights) was never threatened by the 2012 NDAA. The NDAA, in contrast, dramatically expanded the government’s substantive detention powers, essentially rigging the outcomes of habeas corpus petitions. By approving the Gohmert Amendment the House voted for appearance over substance, “fixing” an issue that was never a problem while failing to limit the disturbing powers of the NDAA.Another potential “solution” to the NDAA’s detention provisions also poses a danger to American principles. By creating an unprecedented division between the rights of citizens and non-citizens, the proposal championed by Senator Dianne Feinstein (D-CA) threatens the future of constitutional rights generally. The Constitution has always affirmed that all people under US jurisdiction, regardless of citizenship, are entitled to due process of law. If non-citizens are left uniquely vulnerable to indefinite military detention under the NDAA, will they also become subject to arbitrary violations in other parts of the law? And what will prevent the erosion of non-citizens’ rights from impacting the rights of citizens? By trying to “fix” the constitutionally suspect provisions of the NDAA, Congress may continue to chip away at the Constitution itself, further eroding America’s founding principles.
Recently however, House members have introduced a follow up bill known as the Civil Liberties Act (HR 5936). Reps. Amash and Smith are joined in sponsoring the bill by Reps. John Garamendi (D-CA) and Ed Perlmutter (D-CO). Unlike the divisive nature of the Gohmert Amendment, under the Civil Liberties Act, anyone detained on US soil would be afforded all due rights and liberties under the Constitution, in some cases even terminating the ability to hold suspects in mandatory military detention.
A national call-in-day will take place on June 22, 2012 in support of the Civil Liberties Act. For more information on how to contact your members of Congress and demand that they restore due process and habeas corpus for all Americans, visit National Religious Campaign Against Torture’s Call-In Day page.