The Smith-Amash amendment and NDAA: A loss and a win for liberty

Judge Forrest's injunction against indefinite detention of Americans was a victory for liberty. But the Smith-Amash amendment failed. Photo: Shrieking Tree (Flickr)

WASHINGTON, May 18, 2012 — A federal judge issued a preliminary injunction on Wednesday to prevent the Obama Administration from exercising the indefinite detention authority granted to it by the 2012 National Defense Authorization Act.

Section 1021 of the NDAA could have set a slippery precedent for indefinite detention of American citizens. Obama-appointed Judge Katherine Forrest of the U.S. District Court for the Southern District of New York disagreed that the provision is merely a restatement of existing federal law, stating that the loose language did not “pass Constitutional muster” and could have a “chilling impact on First Amendment rights.”

This ruling was a milestone in the protection of 900 years of legal precedent, but the fight for due process raises frightening questions about the future of American liberty and the intentions of our representatives. 

Section 1021 of the 1800-page, $662 billion spending bill effectively revoked due process and habeas corpus, which puts the burden of proof on the government to justify a person’s detention, for United States citizens merely accused of “substantially supporting” forces “associated” with al-Qaeda or the Taliban that “are engaged in hostilities” against the U.S. or its “coalition partners.” According to Forrest, the quoted terms are undefined, leaving interpretation to the discretion of the president. 

As U.S. Rep. Justin Amash explained to his constituents via Facebook, “An American citizen living in Michigan makes a one-time donation to a non-violent humanitarian group. Years later, the group commits hostile acts against an ally of the U.S. Under the NDAA that just passed Congress, if the President determines the group was “associated” with terrorists, the President is authorized to detain the donor indefinitely, and without charge or trial.”

Under NDAA, no one is safe from indefinite detention, effectively undoing the First, Fourth and Fifth Amendments and giving Americans good reason to fear their own government. We need not assume that our representatives intend that outcome, but weakening legal protections has allowed unscrupulous men to transform republics into totalitarian states. Because the bill’s authors took little care to define meaningful words, “Al Qaeda” or “Taliban” could be replaced with “terrorist,” which itself is quickly becoming a word with no clear definition. 

Indefinite detention policies are considered human rights violations under international law. Understanding this, President Obama swore to veto the bill, and then broke that promise while Americans celebrated the New Year, violating his oath to uphold the United States Constitution and revoking hard-won legal rights. 

His signature was accompanied by a reassuring statement that Obama would never use the power, because the provision “is inconsistent with our most important traditions and values as a Nation.” Though poetic, this has no legal force and future executives are not bound by his promises. 

This violation of human rights motivated Pulitzer Prize-winning journalist Christopher Hedges, activist and author Naomi Wolf, Noam Chomsky, Icelandic parliamentarian Birgitta Jonsdottir, and others to file a lawsuit against Obama, other members of his administration, and leaders in the U.S. Congress as representatives of the United States of America. 

The plaintiffs claimed the indefinite detention provision destroyed due process and freedom of speech. Judge Forrest agreed, writing, “An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.” She added that the law gave the government authority to move against individuals who engage in political speech with views that “may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.” 

As Hedges noted this week, “If there is no rolling back of the NDAA law we cease to be a constitutional democracy.” He continued, “Foreign and domestic subjugation merges into the same brutal mechanism. … And it is always done in the name of national security.”

Grass roots organizations all over the country, primarily coached by Tenth Amendment Center, have introduced the “Liberty Preservation Act” or petitioned their elected representatives to introduce legislation blocking state collusion with unconstitutional federal kidnapping of citizens. Several states have nullified or are nullifying the detention provisions. Virginia was the first to nullify, and Arizona may be next. Should the NDAA not be struck down, this process will continue.

Who is responsible for this assault on liberty? Everyone who voted in favor, including Senators John McCain (R-Ariz.), a victim of unlawful military detention himself, and Carl Levin (D-Mich.). According to the ACLU both used their influence to push passage of the NDAA with the indefinite detention provision intact via closed-door committee meetings, without even a single hearing. 

They were joined by Senator Lindsey Graham, who bellowed in front of the Senate [regarding U.S. Citizens “accused” of supporting terrorism], “When they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’” These Senators forget they swore an oath to protecting the Constitution and rights of American citizens. Let’s hope their constituents do not forget their absentmindedness come election season.

Even Presidential hopeful Mitt Romney admitted in a Presidential debate that he approves of indefinite detainment. Romney appears ill-informed, pulling the terrorism card to support a provision that does not hold evidence, charges or a trial as even necessary for the accused. 

And what is a “terrorist”? Joe Biden called the Tea Party terrorists, the Occupy protest movement could be listed as domestic terrorist group (as it is in the UK), and this administration has declared veterans of Iraq and Afghanistan and Constitutionalists unhappy about power abuses risk groups for “terrorism.” 

Last year, the FBI spread 25 fliers seemingly extracted from a dystopian novel through “threat areas,” including airport service providers, beauty/drug suppliers, construction sites, hobby shops, Internet cafes, martial arts studios, rental car offices and tattoo parlors encouraging Americans to spy on one another.

“Suspicious activity,” which includes dying one’s hair often, paying for a coffee with cash, photographing populated locations, being interested in Internet privacy, or requesting tattoos that conceal extremist symbols—are all behaviors that warrant reporting to the “authorities.”

Under a liberal interpretation of the NDAA, could these citizens arguably be hauled away forever based on simple accusation?

Add this to the administrations assertion of its right to assassinate U.S. citizens abroad considered allied with “terrorists,” warrantless searches, domestic spying without oversight, unprecedented suspension of probable cause, secret courts via the Foreign Intelligence Surveillance Court, and arbitrary justice at presidential leisure, and it appears we have allowed the events of September 11 to transform America into a potentially Orwellian state.

Government doesn’t “give” anyone rights. We are born with them. Elected officials can only protect them or take them away. Congress gave the president sweeping new powers, including the authority to detain American citizens indefinitely, without charge or trial. In the space of a decade, the United States has gone from a nation of laws to incipient dictatorship.

The United States has based its worldwide reputation on protecting freedom. We have taken up the banner of liberty and protected human rights around the world, both by example and with blood. Did our nation’s warriors sacrifice their lives so that politicians could undermine liberty? If the “War on Terror” cannot be won without destroying the Constitution, then have we not already lost? 

When the rule of law is destroyed, we are ruled by the whims of men. Without due process, there is nothing protecting the innocent from mistakes made by bureaucrats. We are no longer free and we can’t call ourselves free, nor can we wage expensive, fruitless wars to bring others “freedom”. 

This expansive, undefined and dangerous detention power is a power the Congress is unauthorized to grant. The Constitution guarantees the Rule of Law, and Congress can act only within its confines. The right to be faced with charges after an arrest is sacred. 

In response to this act and the passage of the 2013 National Defense Authorization Act, which again contains these provisions, an unlikely alliance of libertarian Republicans and liberal Democrats confronted their House colleagues today in support of an amendment supported by Rep. Ron Paul (R-Texas) and introduced by Reps. Adam Smith (D-Washington) and Justin Amash (R-Michigan). 

This amendment would have banned indefinite detention of United States citizens. It gained significant traction after Judge Forrest’s ruling, but faced serious opposition from congressional leaders who believe that being accused of a crime equates to “waging war against America.” Despite Amash’s passionate closing statements, the amendment failed this morning, 182-238. Only nineteen conservative and libertarian Republicans joined 163 Democrats in voting “yes” to preserving due process and habeas corpus. 

Members of the House Armed Services Committee employed extreme rhetoric to persuade Republicans to oppose the Smith-Amash Amendment: 

“The terrible day may come when we get hit again. On that day, do you want to be the one vote that ended the interrogation of terrorists? Do you want to be the one vote who gave the enemy more constitutional rights than our soldiers have?”

Perhaps the American people should ask these leaders if they want to be remembered for casting their votes for the death of American freedom, for the destruction of the rule of law, thus undoing two centuries of the great American experiment. 

For more on the NDAA and the Liberty Preservation Act, please visit the Tenth Amendment Center websit.

 

READ MORE: Citizen Warrior by Tiffany Madison


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Tiffany Madison

Tiffany is a writer and veteran's advocate. Her column focuses on civil liberties, veteran's issues and current events. You can follow her on Twitter @tiffanymadisonFacebook or her website.

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