Moral Low Ground

Civil Liberties

House Votes to Affirm Indefinite Military Detention of Americans Without Charge or Trial

Two days after a federal judge ruled a law allowing people, including Americans, to be detained indefinitely by the military without charge or trial to be unconstitutional, the House of Representatives voted on Friday to allow such detentions to continue.

The bipartisan amendment sponsored by Reps. Adam Smith (D-WA) and Justin Amash (R-MI) was defeated by a vote of 238-182, despite strong support from both sides of the aisle. Supporters of the measure had tried to argue that giving the president sweeping powers to order the indefinite detention of suspected terrorists, even if they are Americans, was granting excessive power to the executive branch. They pointed to the fact that more than 400 terrorists have been successfully tried and convicted in civilian courts, with dozens of terror plots foiled, as evidence that measure was unnecessary.

“The president right now has the authority to go outside the normal due process, constitutionally protected rights that are part of a court trial, and lock somebody up indefinitely or place them in military custody here in the U.S.,” Smith, the ranking member of the House Armed Services committee, said during floor debate. “That is an extraordinary amount of power to give the executive branch over individual freedom and liberty. I don’t think it is necessary to keep us safe.”

Rep. Morgan Griffith, a freshman Tea Party Republican from Virginia, also spoke out in favor of the amendment.

“Jefferson was not willing to allow us to rest on the rights of inference, nor should we in this Congress also be willing to rest on the rights of inference, and particularly when you have language such as this coming out of the court yesterday evening,” he said, referring to Thomas Jefferson’s 1787 letter to James Madison arguing in favor of the not-yet-adopted Bill of Rights.  “As long as I serve in Congress, I will stand up for liberty and make sure that no citizen of the United States has their due process removed.”

Rep. Mac Thornbury (R-TX) voted with the majority in upholding indefinite detention.

“What that means is, as soon as a member of al Qaeda sets foot on American soil, the first thing he hears after ‘You are under arrest’ is, ‘You have the right to remain silent, you have a right to be provided an attorney and if you can’t afford one, one will be provided for you,” he said.

“There may be differences about how we treat illegal aliens who come here as members of al Qaeda to conduct terrorist attacks, but I think the vast majority of people in this body and around the country do not think telling them they have the right to remain silent as the first thing they hear is a wise thing,” he added.

Rep. Smith slammed the notion that his amendment would aid terrorists.

“Hands down, the dumbest set of arguments I have heard … [is] that somehow taking away this extraordinary power from the president rewards terrorists,” he said. “I’d like to remind everybody, in particular, Tea Party conservatives, that just because the government arrests you doesn’t mean you’re guilty. Under their thinking, basically once the government says you’re a terrorist, you’re a terrorist. And we shouldn’t have a trial about it.”

“I cannot believe that Tea Party conservatives want to create a situation where when the government says you’re guilty of a crime, that’s it, no trial,” he added. “Let’s just lock you up and forget about it.”

But that’s exactly what the government is permitted to do under the provision, tucked away deep inside the 2012 National Defense Authorization Act. President Barack Obama, despite a threat to veto the ominous measure, signed it into law with no fanfare on New Year’s Eve when hardly anyone was paying any attention.

On Wednesday, US federal district judge Katherine Forrest ruled the indefinite detention provision unconstitutional, citing its “chilling impact on First Amendment rights.”

The government has not yet announced whether it will appeal her ruling.

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2 Comments

  1. RwolfSeptember 25, 2012 at 9:22 pmReply

    COMING NDAA Hell for Americans’ Civil Liberties?

    Americans deemed by President Obama as Belligerent are vulnerable to Arrest and Indefinite Detention under the passed NDAA, National Defense Authorization Act.

    Late Monday 9-17-12 the Obama Administration was able to get Court of Appeals Judge (Raymond Lohier) for the Second Circuit to reauthorize the White House’s ability under (NDAA) The National Defense Authorization Act of 2012 to (indefinitely detain American citizens) without charge or due process. Second Circuit Judge (Raymond Lohier) placed on hold Judge Katherine Forest’s permanent injunction that recently blocked Pres. Obama’s enforcement of NDAA Indefinite Detention provisions until 9-28-12 when a three-judge appeals court panel is expected to take up the issue. Prior the Obama administration stated to Judge Katherine Forest under NDAA the President had authorization to lock up belligerents indefinitely. That they (were justified) to lock belligerents up indefinitely—because cases involving belligerents directly-aligned with militants against the good of America—warrants such punishment.) Pres. Obama could use NDAA provisions unblocked 9-17-12 by Judge (Raymond Lohier) for the Second Circuit to order U.S. Military Forces to round up without evidence, millions of Americans alleging they are belligerents or threat to National Security. Many observers fear Obama intends to extend NDAA, imprison U.S. Citizens in Indefinite Detention not involved with or associated with enemy forces.

    Hitler included similar provisions in his fascist (Discriminatory Decrees signed February 28, 1933). Immediately after German Parliament passed Hitler’s laws, the Reich Government ordered the arrest of German Citizens without probable cause or evidence; delegated power to German Police and other authorities to arrest anyone Nazi authorities claimed attempted or incited public unrest: arrested among others were outspoken Germans, writers, journalists, peaceful protestors and artists. After World War II the East German Secret Police (Stasi) used the threat of Indefinite Detention to forcibly recruit thousands of informants.

    The U.S. 2012 NDAA legislation Obama signed 12-31-11 is similar to Hitler’s 1933 fascist laws the SS and Gestapo used to target persons in Germany for arrest, imprisonment and execution without probable cause; and confiscate millions of dollars of property. Hitler used his laws to suspend Parliament insuring his laws could not be rescinded.

    During the Obama Administration’s recent request for a (stay) to stop U.S. District Judge Katherine Forrest blocking enforcement of vague NDAA provisions, the Federal Government—never clarified what constitutes a (belligerent); or militant; or what belligerent activities (directly aligned with a militant) to order a belligerent’s arrest or indefinite detention; or what is against the good of America. Under NDAA, the U.S. Government or President could claim anyone was (directly aligned with militants) e.g. any political or other association; charge any activity, statement, writing or communication was (directly aligned) with an individual or group the government deemed (militant) to arrest and indefinitely detain Americans. Writers, journalists, Americans that disagree with or question U.S. Government or its allies—may under NDAA be subject to arrest and indefinite detention.

    The 2012 and not yet passed 2013 NDAA, like Hitler’s 1933 Discriminatory Decrees allow forced government censorship; warrant-less searches of private property and forfeiture of property from persons not charged with crime. Provisions in 2012 NDAA keep the door open for corrupt U.S. police; government agents and provocateurs which there are many, to falsify reports and statements to target any American, group or organization for arrest, indefinite detention, complete disappearance; civil asset forfeiture of their property.

    You may have noted NDAA referred to the USA Patriot Act. Under the Patriot Act, lending itself to Government / police corruption, the Federal Government may use secret witnesses and informants to cause arrests and civil asset forfeiture of Americans’ property. Witness(s) and informants may be paid up to 50% of assets forfeited. Federal Government under 18USC may use a preponderance of civil evidence, little more than hearsay to Civilly Forfeit Private Property. Under the Patriot Act innocent property owners may be barred by government knowing the evidence federal government uses to forfeit their property.

    Sections of 2012 NDAA are so broad, it appears U.S. Government or the President could (retroactively) deem an American’s past 1st Amendment activities prior to passage of 2012 NDAA—supported hostilities, terrorism or (Belligerents) to order the arrest and Indefinite Detention of any U.S. Citizen, writer, group or organization.

    Under NDAA It should be expected that indefinitely detained U.S. Citizens not involved in terrorism or hostile activities, not given Miranda Warnings when interrogated, not allowed legal counsel or habeas corpus may be prosecuted for non-terrorist (ordinary crimes) because of their (alleged admissions) while held in Indefinite Detention.

    See Below Hitler’s 1933 Discriminatory Decrees

    DECREE OF THE REICH PRESIDENT FOR THE PROTECTION OF THE PEOPLE AND STATE

    Note: Based on translations by State Department, National Socialism, 1942 PP. 215-17, and Pollak, J.K., and Heneman, H.J., The Hitler Decrees, (1934), pp. 10-11.7

    In virtue of Section 48 (2) of the German Constitution, the following is decreed as a defensive measure against Communist acts of Violence, endangering the state:

    Section 1
    Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

    Section 2
    If in a state the measures necessary for the restoration of public security and order are not taken, the Reich Government may temporarily take over the powers of the highest state authority.

    Section 4
    Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reich marks.

    Who ever endangers human life by violating Section 1, is to be punished by sentence to a penitentiary, under mitigating circumstances with imprisonment of not less than six months and, when violation causes the death of a person, with death, under mitigating circumstances with a penitentiary sentence of not less that two years. In addition the sentence my include confiscation of property.

    Whoever provokes an inciter to or act contrary to public welfare is to be punished with a penitentiary sentence, under mitigating circumstances, with imprisonment of not less than three months.

    Section 5
    The crimes which under the Criminal Code are punishable with penitentiary for life are to be punished with death: i.e., in Sections 81 (high treason), 229 (poisoning), 306 (arson), 311 (explosion), 312 (floods), 315, paragraph 2 (damage to railroad properties, 324 (general poisoning).

    Insofar as a more severe punishment has not been previously provided for, the following are punishable with death or with life imprisonment or with imprisonment not to exceed 15 years:

    1. Anyone who undertakes to kill the Reich President or a member or a commissioner of the Reich Government or of a state government, or provokes to such a killing, or agrees to commit it, or accepts such an offer, or conspires with another for such a murder;

    2. Anyone who under Section 115 (2) of the Criminal Code (serious rioting) or of Section 125 (2) of the Criminal Code (serious disturbance of the peace) commits the act with arms or cooperates consciously and intentionally with an armed person;

    3. Anyone who commits a kidnapping under Section 239 of the Criminal with the intention of making use of the kidnapped person as a hostage in the political struggle.

    Section 6
    This decree enters in force on the day of its promulgation.
    Reich President
    Reich Chancellor
    Reich Minister of the Interior
    Reich Minister of Justice

    • Brett WilkinsSeptember 26, 2012 at 7:07 amReplyAuthor

      Thanks for that your incisive comment and for drawing this chilling parallel.

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