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Thursday April 26, 2012

As Congress Tries to Fix the NDAA, Read the Fine Print

Posted by Frank Matt at 1:21 pm

On December 31st of last year, the National Defense Authorization Act for the first time in our history codified indefinite military detention of American citizens without charge or trial. Almost as frightening as the law’s actual content, was how little debate was afforded to the subject of indefinite detention. A historic rollback of our constitutional rights was passed with a seemingly indifferent, almost cavalier attitude by our lawmakers.

Finally, Congress is beginning to show signs of wanting to clean up the mess it has made with the NDAA. The subject of indefinite detentions was given its first hearing on February 29th, a long overdue first step toward fixing the NDAA. Since then, several bills have emerged that have been advertised as “fixes” to the indefinite detention provisions. Several of these bills are in fact genuine attempts to address the issue. Others, however, are little more than attempts to end debate on the matter with a faux-fix that would leave intact the government’s ability to indefinitely detain without trial.

Congressman Scott Rigell and 26 of his colleagues introduced H.R. 4388, the Right to Habeas Corpus Act, on April 18th. The bill states that no one will lose their habeas corpus rights under the NDAA and is being sold by Congressman Rigell and his cosponsors as a fix to sections 1021 and 1022 dealing with indefinite detention. The bill’s title and content are designed to sound good, but in practice would have no effect on these sections of the NDAA. The sleight of hand involved is that habeas rights were never taken away by the NDAA in the first place. A writ of habeas corpus is merely a means to test the legality of a detention, not a protection against detention via processes outside the criminal law like the one established under the NDAA. The key question raised by the NDAA is therefore not about habeas corpus, but about this or any president’s ability to order the military to detain someone without charge or trial. The NDAA codifies a means by which this is possible, and there is nothing in Congressman Rigell’s bill that would affect its interpretation or use.

Congressman Rigell’s bill thus represents a flagrant attempt to distract and deceive the American people into thinking that the issue of indefinite detention is resolved. It is also intended to steal support and attention from several bills that would actually address the abuses codified in sections 1021 and 1022 of the NDAA. Congressman Ron Paul, almost immediately after the NDAA was passed, introduced H.R. 3785, which repeals section 1021 of the NDAA. More recently, Senator Mark Udall and Congressman Adam Smith introduced H.R. 4192/S. 2175, a bill which represents the most complete solution yet to the issue of indefinite detention. Senator Udall and Congressman Smith’s bill contains a complete ban on military imprisonment of civilians without charge or trial, a ban on trying civilians before military commissions within the United States, as well a repeal of section 1022 of the NDAA.

As Congress attempts to address (or evade) the issue of indefinite detention, it is crucial to read the fine print and only support legislation what would represent a complete and aggressive stand against the executive branch’s ability to indefinitely detain in the United States allowed by the NDAA. The only solution that will work is a bill that repeals or bans the specific powers granted to the executive and military in sections 1021 and 1022. Write your members of Congress, and tell them to support measures like H.R. 4192 and oppose dishonest bills like The Right to Habeas Corpus Act. Let them know that you will not tolerate legislative trickery or games when it comes to your rights as an American citizen.

Tagged as Issues, Civil Rights and Civil Liberties

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