SECTION 1029 OF NDAA 2013: AN INEFFECTIVE ATTEMPT TO REDRESS THE UNCONSTITUTIONALITY OF SECTIONS 1021 & 1022 OF NDAA 2012
Supposedly, to not have the National Defense Authorization Act of 2013 be subject to the same Constitutional infirmities that afflicted the 2012 version, the 2012 United States Senate (under the control of the Democratic Party) inserted into its version of the National Defense Authorization Act of 2013 Section 1033, which affirmed the right of habeas corpus and the Constitutional right of due process for American citizens. However, there were still criticisms of the Senate version of the 2013 NDAA from civil libertarians because it affirmed the Right of Habeas Corpus and Access to The Due Process of Law only to American Citizens who were seized and detained by U.S. Military Forces pursuant to the authority granted to the Military by NDAA 2012, Sections 1021 & 1022. This provision was passed by the U.S. Senate on December 4, 2012 to be inserted into the NDAA of 2013 by a vote of 98-to-0. However, the Republican Party-controlled U.S. House of Representatives expressly deleted Section 1033 from its version of NDAA 2013 and substituted for it House Section 1029 which provided 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).
A Congressional conference committee tasked with merging the House and Senate versions of the 2013 National Defense Authorization Act (NDAA) decided, on December 18, 2012, to simply drop the Feinstein-Lee provision, which would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects. There was no reason given for this. Instead, they simply included into the “Approved Bill” the Section 1029 authorized by the republican House of Representatives which provided:
“Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541) 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 or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.”
In his signing statement to the National Defense authorization Act of 2013, President Obama stated “Even though I support the vast majority of the provisions contained in [NDAA 2013] I do not agree with them all. […] Though I continue to oppose certain sections of the Act, the need to renew critical defense authorities and funding was too great to ignore.” Among these provisions are provisions which effectively thwart Obama’s efforts to close Guantanamo Bay detention camp and give military members the right to refuse to take certain actions that violate their conscience. The president was criticized by civil rights and human rights organizations for his signing.
American Civil Liberties Union Executive Director Anthony Romero said with respect to the 2012 NDAA indefinite detention provisions and Obama’s signature of the 2013 NDAA: “His signature means that indefinite detention without charge or trial, as well as the illegal military commissions, will be extended.”
“This law makes it harder for the President to fulfill his promise to close the Guantanamo detention facility, perpetuating a grave injustice against the detainees held without charge or fair trial,” said Frank Jannuzi, Deputy Executive Director of Amnesty International USA. “Solutions for ending human rights violations, not excuses, must be found.”
The National Defense Authorization Act of 2012, an otherwise mundane annual bill that lays out the use of funds for the Department of Defense, came under severe attack during for the insertion into the Act of 2012 of Sections 1021 & 1022 that purport to authorize the U.S. Military to detain United States citizens indefinitely without charge or trial merely upon the suspicion of ties to terrorism.
Under the 2012 NDAA’s Sec. 1021, U.S. President Obama did not agree to the provision giving the military the power to arrest and hold Americans without the writ of habeas corpus and he promised, in his December 31, 2011 “signing statement” of the NDAA of 2012 that his administration would not apply that provision to American citizens detained by the U.S. Military here in the united States.
On December 4, 2012, the U.S. Senate unanimously passed the bill 98-0 and added in Section 1033 a “Feinstein-Lee NDAA Amendment” which states: “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.” Civil liberties groups are concerned with this amendment because they think anyone on American soil should be given a trial if accused of a crime, given that the U.S. Constitution protects “persons,” rather than “citizens.”
The Feinstein-Lee Amendment was, however, itself publicly criticized by civil libertarians as being “inconsistent with the constitutional principle that basic due process applies to everyone in the US,” as was stated by American Civil Liberties Union (ACLU) Legislative Counsel Chris Anders. Anders was also worried that the amendment could be construed to actually imply that the U.S. government has the constitutional authority for indefinite detention without charge and trial. “Moreover, we are very concerned that the Feinstein amendment implicitly authorizes domestic military detention. By seeking to protect only United States citizens and legal permanent residents, the amendment could be read to imply that indefinite military detention of any other persons apprehended within the United States was authorized in 2001 and was lawful,” the ACLU wrote, referring to the Authorization for Use of Military Force, the founding document of the “war on terror” that was passed the week after the 9/11 attacks. “In addition, the clause ‘unless an Act of Congress expressly authorizes such detention’ could be read to acknowledge, on the part of even the Democratic Party members of Congress that there is no constitutional prohibition against Congress enacting a statute that would authorize the domestic military detention of any person in the United States,” the ACLU wrote.
The Huffington Post noted that the “replacement version” of the Senate’s Section 1033 of Senate bill 3254 (i.e. Section 1029 of House resolution HR 4310) “appears to do little… because the U.S. Supreme Court has already declared that the writ of habeas corpus, i.e. the constitutional requirement that someone be presented to a judge, already applies to all people. This was echoed by many civil liberties groups. “This language [in Section 1029 of the final NDAA 2013] does nothing of substance,” said Raha Wala, a lawyer in the Law and National Security program of Human Rights First. “It does NOT ban indefinite detention within the United States or change anything about existing law.” Chris Anders from the American Civil Liberties Union called the language on indefinite detention of Americans “completely meaningless” and added that there is no doubt that habeas rights are available to anyone who’s detained in the U.S.
However, Republican Party Leaders maintain that the “W” Bush Administration is correct when it asserts that “persons detained under The Law of War are not, as a matter of law, entitled to the Right of Habeas Corpus or to access to The Due Process of Law to which a person would be entitled before an “Article III Court of Law.”
Scott Higgins, one of the ACLU attorneys who represented journalist Chris Hedges, anti-war activist Daniel Ellsberg, and Bush Administration critic Noam Chomsky in the New York federal case that successfully challenged the constitutionality of NDAA 2012’s Sections 1021 & 1022 on the Federal District Court level in 2012, explained that Section 1029 of the final NDAA of 2013 appears on its face to acknowledge that anyone arrested in the United States under the authority of Section 1021 of the NDAA of 2012 possesses a right to go before a civilian (i.e. Article III) court and to be there accorded “any [applicable] constitutional rights,”however, since there are no rules set in place by means of which any person so detained by the U.S. Military could possibly exercise this right, no person actually detained under the authority of Sections 1021 & 1022 would have any way to gain access to lawyers, family or to such a civilian court once they were detained by the military. Anders added that the new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF], while the original statute from the 2012 NDAA which he is fighting never went that far. Anders concluded: “Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S.”