2013 NDAA and Feinstein Amendment fail Constitutional Test

If Congress intends to uphold the Constitution, it must ban indefinite detention for persons within the USA, civilians and legal aliens. And that's to start with.

RHODE ISLAND, November 30, 2012 ― The Feinstein Amendment does not fix the Constitutional infirmities in the 2012 NDAA. Neither does proposed language in the 2013 NDAA. Congress is now poised to reaffirm the President’s ability to prosecute persons within the USA through military tribunals, allow continued indefinite detention without charge or trial, and do nothing to limit the practice of extraordinary rendition.

The most troubling provisions of section 1021 of the 2012 NDAA provide that all persons within the USA – including U.S. citizens – whom the President unilaterally determines “substantially supported” the Taliban, Al Qaeda or “Associated forces” may be designated as enemy combatants. They may be subject to indefinite detention, extraordinary rendition (the transfer to foreign jurisdiction or entities) or military tribunals. Importantly, one’s “substantial support” does not have to be knowing or willful.

While the indefinite detention language in the 2012 NDAA does not require any Due Process whatsoever, it is tempered – inadequately tempered — by Supreme Court precedent that requires limited Due Process rights for those designated as enemy combatants subject to indefinite detention.

The Supreme Court ruled in Hamdi v. Rumsfeld that Hamdi – a U.S. citizen captured on a foreign battlefield and held indefinitely within U.S. jurisdiction – generally possessed the right to a meaningful opportunity to challenge his enemy combatant status before a neutral military decision-maker.

In Boumediene v. Bush, the Court further defined the due process rights of enemy combatants captured on a foreign battlefield and held within U.S. jurisdiction. They possess Habeas rights in an Article III court to review the neutral decision-maker. However, as a review of a military decision, the Habeas procedures for continued indefinite detention are shockingly inadequate compared normal criminal proceedings. There is no 6th Amendment jury right. Hearsay is freely admissible, i.e., the 6th Amendment right to confront ones accusers is absent. The government’s burden of proof is not “beyond a reasonable doubt,” but is instead a mere preponderance of the evidence. The evidence may be based on hearsay that someone “substantially supported” a terrorist organization.

Then came the NDAA. The NDAA extends the President’s power to detain U.S. citizens. All persons within the USA — citizen and non-citizen alike — are now subject to indefinite detention upon allegations of supporting terrorism, as well as the same limited Due Process rights articulated in Hamdi and Boumediene. They may be tried in military tribunals and subjected to extraordinary rendition.

After loud outcry from citizens and States alike, Congress is now poised to pass the 2013 NDAA with what at first blush appear to be fixes to the indefinite detention provisions of the 2012 NDAA. However, the proposed text, and the recent Feinstein Amendment, may do little to restrict the President’s homeland war powers.

The operative language of the 2013 NDAA is contained in Section 1033(a):

“Nothing in the Authorization for Use of Military Force or the National Defense Authorization Act for Fiscal Year 2012 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 for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force and who is otherwise entitled to the availability of such writ or such rights.”

Section 1033 still speaks to ‘detention’ of persons within the USA – as in indefinite detention without charge or trial. And the Constitutional rights apparently preserved by section 1033 are likely only the limited protections that are already required under Hamdi and Boumediene for people facing indefinite detention. There is a right to a limited Habeas review in an Article III Court, but without the numerous procedural safeguards available in normal criminal proceedings.

Section 1033 of the 2013 NDAA seems to be a mere codification of the limited Hamdi and Boumediene protections for people detained as enemy combatants. Importantly, the President’s 2012 NDAA authority to dispose of persons captured in the USA — including U.S. citizens – through military tribunal and extraordinary rendition are not curtailed.

Unfortunately, the Feinstein Amendment does little to fix the problems with the 2012 NDAA, because it 1) may reaffirm the limited indefinite detention Due Process articulated in Hamdi and Boumediene, 2) does not restrict military tribunals with numerous Due Process infirmities for persons within the USA, 3) and it does nothing to limit extraordinary rendition.

The operative language of the Feinstein amendment is this:

“(b)(1) An authorization to use military force, a declaration of war, or a similar authority shall not authorize the detention without charges or trial of a citizen or lawful permanent resident of the United States apprehended in United States, unless an Act of Congress expressly authorizes such detention.” … .

(b)(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the United States, a lawful permanent resident of United States, or any other person who is apprehended in the United States.”

How does the Feinstein’s amendment actually affect the 2012 NDAA? It still allows indefinite detention upon the express authorization of Congress, and it says that the amendment should not be construed to authorize such detention. Yet, section 1021 of the 2012 NDAA, intended to clarify the 2001 Authorization to Use Military Force, specifically authorizes such indefinite detention.

Section 1021 applies broadly to include all persons, including those within the United States (as advocated by the Obama Administration and numerous members of Congress). Thus,  section 1021 may still be interpreted as a specific enough authorization under the Feinstein Amendment for indefinite detention of persons within the USA, making the Feinstein Amendment worthless.

The Feinstein Amendment does not specify what “charge” or “trial” mean. While this may seem like semantics, it is a very important omission because the judicial forum and attendant Constitutional protections are not specified.

On one hand, the Feinstein Amendment could be interpreted as requiring the same limited Due Process articulated in Hamdi and Boumediene. By requiring charge and trial, the Feinstein Amendment may only codify existing, limited Due Process rights that must already be extended to those detained under the 2012 NDAA. As we contemplate the extent of those rights, we should remember that the Obama Administration has declared that the President’s decision was sufficient Due Process prior to the drone assassination of U.S. citizens Al Allawaki and son.

On the other hand, we must remember that in addition to indefinite detention without trial or charge, the 2012 NDAA authorizes military tribunals. Military tribunals are initiated through formal charges and are deemed trials. Although the 2013 NDAA seeks to preserve Habeas rights and Constitutional protections when in an Article III Court, neither the 2013 NDAA or the Feinstein Amendment require that the actual charge and trial occur in a civilian court with all the Constitutional protections of normal criminal proceedings. The military tribunals authorized in the 2012 NDAA are simply not restricted. Thus, the “charge and trial” specified by the Feinstein Amendment likely refers to a military tribunal; the same tribunals ongoing in Guantanamo Bay.

Constitutional protections in military tribunals are still woefully inadequate for a civilian trial. The right to confront accusers is limited and significant hearsay testimony is admissible, the jury is composed of military officers rather than the defendant’s peers, a unanimous verdict is not necessary for conviction, Miranda warnings are not applicable, and search warrants are not required for evidence to be admissable. Importantly, the constitutional requirement that treason be proved by the testimony of two witnesses to the same overt act is not applicable.

The 2012 NDAA authorizes the transfer of alleged enemy combatants to foreign jurisdictions and entities; that’s extraordinary rendition. The 2013 NDAA and the Feinstein Amendment do nothing to curb this horrific practice. The Constitution, laws and courts are completely irrelevant once someone has been transferred outside the jurisdiction of the USA. An accused’s Constitutional rights (and any rights supposedly preserved under the 2013 NDAA and Feinstein Amendment) are only enforceable within the jurisdiction of American courts.

Nothing has been done to limit the President’s authority in the 2012 NDAA to engage in extraordinary rendition.

The most that the Feinstein Amendment requires is that people within the USA designated as enemy combatants are entitled to military tribunals. Military tribunals are a slight improvement over the Hamdi and Boumediene indefinite detention procedures, but the consitutional protections are still very weak. Our Founders certainly did not intend for the president to have such domestic war powers – especially over citizens – without a Congressional declaration of War. Instead, Congress unconstitutionally gave him these powers in the 2012 NDAA and has done little to limit them with the ineffectual 2013 NDAA and its Feinstein Amendment.

If Congress intends to uphold the Constitution, it must immediately ban indefinite detention, require that trials of American civilians be held in civilian courts, and strike the President’s extraordinary rendition powers. Congress must restore the rule of law!

Otherwise, the terrorists have won.

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Blake A. Filippi

Blake Filippi is a Legal Analyst for the Tenth Amendment Center. He is also the director of the Rhode Island Liberty Coalition, a constitutional attorney and the initial author of resolutions opposing NDAA detention provisions being introduced around the country. Visit RI Liberty online at www.riliberty.com.


Contact Blake A. Filippi


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