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No, The Indefinite Detention Fight Isn’t Over

December 3, 2012 by  

No, The Indefinite Detention Fight Isn’t Over

Headlines last week declaring a civil liberties victory in a Senate vote to do away with indefinite detention provisions in the National Defense Authorization Act are misleading, say critics of military detention of American citizens.

The amendment to NDAA filed by Senator Dianne Feinstein (D-Calif.) and backed by Senators Kirsten Gillibrand (D-N.Y.), Rand Paul (R-Ky.), Dean Heller (R-Nev.), Mark Udall (D-Colo.), Jon Tester (D-Mont.), Mike Lee (R-Utah), Chris Coons (D-Del.), Susan Collins (R-Maine), Mark Kirk (R-Ill.) and Frank Lautenberg (D-N.J.) was approved 67-23 last Thursday.

The amendment reads:

Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) 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 for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights,” reads Sec 1033 (a) of the proposed Pentagon spending bill.

While the lawmakers claimed a victory in reigning in the military’s detention powers, the American Civil Liberties Union argued that that the Feinstein Amendment is far from a fix to eliminate indefinite detention and, in fact, expands the government’s power to hold Americans prisoner.

The ACLU argues the following points are problems with the amendment:

  • It would NOT make America off-limits to the military being used to imprison civilians without charge or trial. That’s because its focus on protections for citizens and green-card holders implies that non-citizens could be militarily detained. The goal should be to prohibit domestic use of the military entirely. That’s the protection provided to everyone in the United States by the Posse Comitatus Act. That principle would be broken if the military can find an opening to operate against civilians here at home, maybe under the guise of going after non-citizens. This is truly an instance where, when some lose their rights, all lose rights — even those who look like they are being protected.
  • It is inconsistent with the Constitution, which makes clear that basic due process rights apply to everyone in the United States. No group of immigrants should be denied the most basic due process right of all — the right to be charged and tried before being imprisoned.
  • It would set some dangerous precedents for Congress: that the military may have a role in America itself, that indefinite detention without charge or trial can be contemplated in the United States, and that some immigrants can be easily carved out of the most basic due process protections.

The bottom line, according to critics of the amendment, is that it still leaves open the possibility for the U.S. military to detain citizens and persons on U.S. soil in violation of the Posse Comitatus Act, which limits the use of military to enforce domestic law.

Sam Rolley

Staff writer Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After learning about many of the biases present in most modern newsrooms, Rolley became determined to find a position in journalism that would allow him to combat the unsavory image that the news industry has gained. He is dedicated to seeking the truth and exposing the lies disseminated by the mainstream media at the behest of their corporate masters, special interest groups and information gatekeepers.

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  • eddie47d

    This is what has been pushed for since NDAA was signed into law. The vote was 62-33 and both my Senators voted for this repeal. I cherish every victory we can get and look at this as a positive. With our cranky unpredictable Congress I was surprised at all that it was passed. There is still work to be done yet more credit should be given to the ACLU who also was on top of this issue from the get go. When folks work together attacks against our civil liberties won’t go unchecked and can be overturned.

    • Mikey

      Eddie, I’m glad this is something we can agree on. I usually disagree with Diane Feinstein, but was impressed to see her name on this measure. If even a liberal Democrat like Feinstein can see the government overreaching, then we clearly have a problem.

      • Vicki

        Here is why the amendments are a bad idea. The only solution is repeal of the original idea in total.

        Oh and remember if the proposed fixes were enacted all a President would have to do is declare you a non-citizen and then kidnap you. Such a condition could easilly exist with this simple sounding senate bill

      • Mikey

        Vicky, I agree with “The only solution is repeal of the original idea in total.” But, good luck with that. We are fighting a battle with huge powers, with lots of money, and bought out politicians.

      • Kate8

        Mikey – I was listening to a legal expert talking about this, and it’s not what it seems. It’s worded in deception, and does nothing to protect the citizenry.

        It’s a red herring. Did you really expect Diane Feinstein would care one whit about our rights?

        BTW, she’s (choke) my senator. Needless to say, I did not vote for her.

      • Vicki

        Mikey writes:
        “Vicky, I agree with “The only solution is repeal of the original idea in total.” But, good luck with that. We are fighting a battle with huge powers, with lots of money, and bought out politicians.”

        No need for luck. No need for lots of money. We have the Internet. Go to that first link above and then send a message to your Congressmen. Then send the info on to just 2 friends and get them to send a message and to tell just 2 friends.

        The power of 2. Truly a sight to behold.

  • czman75

    So, what’s the point? Until we get the current admin(and congress) out of power, we are no longer in charge of our own lives.
    Now is the time for all good men to come to the aid of their Country. It is TIME to water the Tree of Liberty!!

    • Hedgehog

      Water the tree of liberty! You’re too late! O’dogma has already cut down the tree of liberty and turned it into lumber. The next step is to build his dictators mansion with it. As soon as he inducts your police, TSA, FBI, etc. into the military you’ll find out what the NDAA is really all about. You fought a war on terror, unfortunately you lost! The terrorists now own your country, right now they are just consolidating their conquest. I suspect that we here in Canada are next on O’dogma’s shopping list.

      • Ben W. Gardner

        No. Harper’s doing a very good job selling what’s left of Canada to the Chinese.

      • eddie47d

        Read what I had to say in Tim Young’s column today. This has been a long time coming so maybe you should stick to Canadian politics instead of your sloppy critique. Besides part of NDAA was overturned last week and we can do the same with Bush’s TSA!

      • Buster the Anatolian

        “… and we can do the same with Bush’s TSA!”

        First it isn’t Bush’s TSA to many from both parties supported it and I believe it was originaly written by a dem.

        Second I agree they should be totaly dismantled but good luck with that because of the bi-partisan support it has.

      • Vicki

        eddie47d writes:
        “Besides part of NDAA was overturned last week and we can do the same with Bush’s TSA!”

        Perhaps it has escaped your notice but a guy named Obama won in 2008 (and again in 2012) so that makes it Obama’s TSA. Had Romney won in 2012 then it would become Romney’s TSA in 2013. Round about Jan 20th

      • Deerinwater

        All of you! ~ quite sounding like a defeated snail. ~ Listen to Vicky.

    • David S. Batchelder

      How do you propose on watering the tree. What does that mean in regards to your thoughts

      • Nancy in Nebraska

        I’m assuming that he’s referencing Thomas Jefferson’s famous quote, “The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants”.

      • SJJolly

        As Nancy in Nebraska indicates, probably with the blood of patriots and tyrants. But then again, maybe CZMan 75 has a different plan? Perhaps he will care to specify.

      • Deerinwater

        No need for blood when just action will do. There might be a time for blood but craft your language and control your life.

    • Bobbie


    • ibcamn

      by the time we get the progressives out of the whitehouse,Obama is already putting his henchmen to work grabbing land under the gov’ts name,with Obamas new death tax,family owned land(some for generations)is going by the wayside.where i use to hunt for years(private land)is now posted as gov’t property!when i inquired as to how it happened,it came down to the taxes!what they owed for the passed year and on there granfathers death(inheratence tax)and because it was to be hobby farm attached to the property(even though the farm was empty and no permit for hobby farm had ben issued on that attached land for years)the gov’t classified it a wetland or something in the same rehlm of b.s.,the amount was raised and also raised on years passed,with fines and percentages of course,which then made it impossable for them to pay it in a certain time fram,and it had morgage on house,nothing else,which made getting loan that much harder,and then came the gov’t with their little signs and a notice to get off gov’t property!this is happening to thousands of farm,private,buisness land all over and by the time we try to do something the damage is done and over.lives and families are ruined and the gov’t dont care!the acredge the gov’t seizes every year is unbeleivable!look at maps from year to year on gov’t property and where it is.families cant afford to inherite the family farm and Obama is sitting back smoking a cigerette with debbie schultz giving him a lap dance and smiling like a jackass!

  • Tom Baughman

    There is a UN resolution being voted on in the US Congress to give our liberties over to UN control. I just telephoned my Senators and Representative and strongly oppose this outlandish give away. The US must withdraw from the UN and now is a good time to start. Call you legislators and do the same.

    • Doc Sarvis

      What UN resolution is that?

      • Buster the Anatolian

        There is supposedly a senate vote tomorrow on a UN treaty requiring the registration of all babies born with any kind of disability. Don’t have the source handy but perhaps that is what he is refering to.

    • MNIce

      Please provide bill numbers, or at least the name of the legislation. How is the House of Representatives involved? Only the Senate votes on treaty ratification.

    • Nancy in Nebraska

      We need to get the UN OUT of our country and get our country OUT of the UN!!!!!! NO to the “new world order”!!! NO to the “one world government”!!! NO the the loss of our sovereignity!!! Long live The United States Of America!!! Take our country back!!!

      • SJJolly

        The UN is a “cave of the winds.” It couldn’t take over New York’s Central Park, which is just a few miles from UN Headquarters. To see it as some sort of great monster is to get played by those who seek to use it as a distraction from more real plots.

    • TIME

      Dear Tom,

      Saddly we lost it in 1938 – when what was the United States inc sold its self to the IMF under FDR. { The United Nations} is simply the IMF’s wall paper ~ for One World Governance.
      Its also known as the “New World Order” among one of its many other names.

      Peace and Love

    • outraged

      TOUCHE’ Get the UN out of our country and let someone else host them and pay for their corruption. I agrre with you 100%

  • Protonius

    Take note of the amendment’s key phrase: “for any person who is lawfully in the United States when detained”.

    Notice how American citizens who happen to be OUTSIDE the U.S.’ borders, whether for work or pleasure or retirement or any other lawful purpose, are SPECIFICALLY NOT PROTECTED (or even mentioned) by this amendment?

    Notice too how this amendment, via the above excerpted phrasing, specifically CONTINUES TO ALLOW a person — American citizens included, regardless of location — to be “detained”? And thus sets yet an additional freedoms-threatening “pro-detention precedent” into Federal law?

    Notice too that this amendment, although SEEMING (at least “on the surface”) to preserve a detainee’s “right” to mount a legal defense against — and to seek a release from — such detention, the amendment (a) WOULD STILL ALLOW THAT DETENTION TO HAPPEN and (b) would most likely IMPOSE A HUGE — and, for some, an INSURMOUNTABLE — BURDEN in terms of time, stress, effort, expense, possible loss of family or friends or job or reputation or professional standing — for a “detainee” to FIGHT TO REGAIN his or her Constitutionally-guaranteed FREEDOM?

    Where, I would ask, in this amendment, or in this NDAA legislation itself, is there ANY protection for the potential (and lawfully acting) victims of this legislation? Where, in this legislation, is there ANYTHING that, even if these detention-related provisions are put into action and prisoners, er, victims, er, “detainees”, are taken, that would give those detainees FULL AND UNFETTERED RIGHTS TO IMMEDIATELY AND EFFECTIVELY BLOCK that detention from taking place, or which, at least, would afford those detainees the financial and legal wherewithall (and the legal rights) to immediately — and, if justified, to EFFECTIVELY — INVALIDATE that detention and be immediately FREED, AT NO EXPENSE TO THEMSELVES?

    But, maybe, in view of this amendment, and this NDAA, and how a certain guy — who (IMO) SHOULD have demanded that Congress take back its bill unsigned and redraft it to EXCLUDE those detention-provisions — signed that bill into law regardless of the dangers that it sets up, we should instead be asking THIS question:

    “How do YOU spell ‘n-a-i-v-e’?”

    • TIME

      Dear Protonius,

      Very good points for all to think about.

      Peace and Love, Merry Christmas

    • ibcamn

      when you getarrested for spitting on the sidewalk in another country,your f%$ked!the policia see $$$ signs,thats it!they say they set examples of tourests but its just $,they know some moron tourist will mess up and they are there to snatch you up!they’re hoping youre family is rich,they know daddy will empty his account to get his drunk son out of the country or mommy will pay whatever trust fund money they have to get her virgin little baby out too!poor people sit and rot for months with no help tillenough people bark at the gov’t then tax money gets spent!palms get greased and promises(that get broke)are made and then your on a plane home with a new outlook to how stupid you were!remember the caning deal!!we are not even thought of till it happens and even then the laws arnt rewritten to favor us,the gov’t just wants us to stay put and let the bigwigs walk all over us,we dont matter enough to even be a footnote in the laws!

  • MNIce

    From United States Code Title 18: Crimes
    “Sec. 242. Deprivation of rights under color of law

    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or [by reason of his color, or race,] than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”

    This statute takes care of the concern over the rights of non-citizens in the geographical jurisdiction of the United States. Anyone, military or not, who detains someone indefinitely without trial under the claim that the detainee is a non-citizen is a felon.

    This statute could be improved further by replacing the clause I have marked with brackets with “any other characteristic of such person” to make its protections universally applicable.

    • Marmaru

      Simply honoring Common Law would do the same. More “rules” or “laws” simply empower a corrupt legal system and gives legitamacy to rules over Law. I agree where you are going, but I think that was covered during the Ratifcation process that the Federal Government can’t do what they are doing without “our” (the electorate’s) consent or complicity.

      • juswonderin

        I’m of the understanding that IF or WHEN this thing is ratified by our “honorable Congress,” that Pres Obama is going to re-write our Constitution & it will be a detriment to ALL of our citizens regardless of race, citizen, sexual orientation, religion, political party, will all be targeted IF the gov’t so chooses. NONE of our laws, principles, or anything else will be considered & we will be a nation with a dictator & America will be NO MORE! No matter how they portray this criminal NDAA, it will be against our citizens that will have to surrender to stay alive. WHAT A COST TO OUR ONCE FABULOUS COUNTRY!! Oh yeah, I think we would have to deny OUR religion & especially born-again Christians.
        This is the same thing that Pres Morsi of Egypt is doing to their countrymen/women; exactly! PLEASE TELL ME THAT IF “AIN’T” SO!!

  • Steve E

    If the military detains (captures) you, you may kill your capturers under the Geneva Convention without it being called murder because, under the Geneva Convention, it is you duty to try to escape.

    • jeepman1

      Steve, I am sorry to say it, but you are wrong. “Killing your captors” is not “legal” under the Geneva Conventions. Under those conventions that is still considered murder. You can always defend yourself and others, but killing to affect an excape is not legal and you can be prosecuted under the rules of warfare. Not that any of this matters…

      • ibcamn

        you are correct!but then again it depends on who you’ve ben captured by.most of our enemies just kill us if we try to escape,no trial,no nothing,they just throw you in a ditch and let the buzzards eat till their so fat they cant fly!..and yes it is you’re duty to scape,every soldier knows this!

  • Marmaru

    Correct me if i’m wrong (almost afraid to say that with this crowd :-), but doesn’t it take an Amendment and the Amendment process for the Federal Government to legally modify any of the Bill of Rights? The Bill of Rights were never meant to be “law” or rules for the electorate. They were added on to be rules or law for the Federal Government and their employees and contractors (All of them “our” employees). Do we as a country or people in general really believe that the Federal Government can legally usurp the Constitution (which still includes the Bill of Rights, by my understanding) or Common Law? How is this so (other than through the misunderstanding of the electorate or simple apathy by said electorate)????

    • juswonderin

      By the time this NDAA is ratified, our Constitution will NOT look like it is today; especially the Bill of Rights. The gov’t is expanding their authority to RE-WRITE OUR CONSTITUTION. We will have the U.N. Constitution & the U.N. international laws that will supercede ours!

      • http://Yahoo JD

        Could this even be a possibility? Not according to the Constitution.
        Why don’t all you liberal indoctrinated, er. “educated”,try expanding your free minds, and read the real Constitution, not the new reworded one I hear is in our schools now. I know you don’t like that, but you do have the intelligence at least think about and compare.

  • sigmond

    I don’t understand that some of you have already given this country over to the UN. If we must stand against this corrupt gov’t and fight then the REAL citizens of this great country will come out in the millions and save this country from the evil that lurks within our current gov’t. We fought too hard to let a Communist come in and take complete control of this country. He thinks he’s Hitler – but he’s just another one in the succession of Duche Bags that people of this country voted for. After hearing and seeing the corruption of the last vote – and the actual votes that didn’t get counted and the ones that were in a machine that kept defaulting to Obombya’s name – we REAL American’s can see the writing on the wall and just like the war between the states – this country will fight any faction that tries to take the Rights and Freedoms that we have lived with all of our lives. Communism and Fascism are destroying the USA and all of the EXEC orders must be battled so they are not allowed to become the big KILLER of all humanity. Washington – 534 RATS and they need to be led by a PIPER out of the city and drowned in the ocean. Washington is EVIL on steroids.

  • s c

    There is a way to make this farce ‘fair,’ people. That is, the day an American citizen can arrest and detain an elected _____ is the day that this concept is truly FAIR.


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