2013 NDAA Does Nothing to Prohibit “Indefinite Military Detention”

After theatrical performances that rivaled Shakespearean theatre, the 2013 National Defense Authorization Act (NDAA) was passed by Congress late last week (315-107) in the House, and (81-14) in the Senate. President Obama is expected to sign the bill into law despite threats to veto over various provisions.

Of concern to many Liberty watchdogs are certain provisions in last year’s NDAA that violated numerous clauses in the Constitution, including over half of the Bill of Rights. Various amendments were proposed to the 2013 NDAA in both the House and Senate alleging to address those concerns, none of which did anything.

The sole surviving section in the 2013 NDAA that speaks to the Rights of the People, Section 1029, does nothing at all.

NDAA for FY 2013, CONFERENCE REPORT, H.R. 4310, SEC. 1029:RIGHTS UNAFFECTED. 

“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 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.” (emphasis added) 

There are two possible interpretations of Section 1029. The first is based on its literal meaning based on the section’s grammatical construction; the second is a practical interpretation that courts would likely apply if the literal meaning fails.

Let’s look at the last prepositional phrase in Section 1029, which states in plain language, “in the absence of such laws.” What does that mean? The plain reading of it means “if these laws were not in effect, or did not exist.”

Section 1029 in layman’s terms would read: “Nothing in “such laws” shall be construed to deny the availability of the writ, or to rights, for people entitled to the writ or those rights if “such laws” weren’t laws.” What are “such laws,” and what does “in the absence of” those laws mean?

“SUCH LAWS” = “2001 AUMF & 2012 NDAA”

IN THE ABSENCE OF SUCH LAWS = IF THESE LAWS WEREN’T PRESENT = IF THESE LAWS DIDN’T EXIST

Since we know that the 2001 AUMF and 2012 NDAA aren’t “absent,” meaning they are “present,” then the plain grammatical analysis of Section 1029 means the following:

If the 2001 AUMF and 2012 NDAA were not laws, then they couldn’t be construed to deny Habeas and Constitutional rights in an Article III court to persons in the U.S., but these laws do exist, and will be applied.*

*Stating that it would apply to persons “entitled” to the writ or rights is redundant, assuming we are talking about persons “in the United States” who are not “in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”

Since they “are” laws, then Section 1029 “literally” means absolutely nothing.

The courts, in interpreting the statute, would interpret it in such a way as to give substantive meaning to all sections. As noted above, the literal / grammatical interpretation renders Section 1029 meaningless, i.e., its presence in, or absence from the 2013 NDAA would have no influence on the meaning of the bill. Therefore, the courts would likely fall back on an interpretation that would give Section 1029 a substantive meaning on its face.

Senator Levin’s interpretation of Section 1029 is such that, for those persons detained in the United States — that their rights will be determined as if the 2001 AUMF and/or 2012 NDAA never existed.

“The language in this conference report reflects my view that Congress did not restrict or deny anyone’s Constitutional rights in either the 2001 Authorization for Use of Military Force or the Fiscal Year 2012 National Defense Authorization Act.”            – Senator Levin, Dec. 21, 2012

On Sept. 12, 2012, Federal judge Katherine Forrest ruled that Senator Levin’s assessment is incorrect. (See Hedges v. Obama ruling here.)

Without the 2001 AUMF and 2012 NDAA, unless there was another enabling law, there would be no statutory authority to detain persons “pending disposition under the laws of war.”

Had Congress intended to prohibit the application of the “law of war” in the United States, they would have “explicitly” done so. They did not. Robert A. Heinlein, a former naval officer and Annapolis grad, better known as the “dean of science fiction” stated, “The best lie is the truth. Only tell them the part you want them to know.”

This is what Congress has done in both the 2012 and 2013 NDAA’s. Section 1029 of the 2013 NDAA is a fine example of “best lie” tactics.

H.R. 4310, 2013 NDAA Conference Report, Section 1029: RIGHTS UNAFFECTED. The phrase “Rights Unaffected” in the section title is a continuation in the 2013 NDAA of the deceptive techniques used in the language and discussion of the 2012 NDAA, and is meant to inject confusion and to mislead the American public and others as to the actual effect of the law.

For example, 2012 NDAA, Section 1021 was titled: “AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.” A clear and plain reading of Section 1021 reveals it was an expansion of both the scope of the authorization, and targeting profile of covered persons.

Section 1022 was titled “Military Custody for Foreign Al-Qaeda Terrorists” implies that Section 1022 only relates to the custody of “foreign Al-Qaeda terrorists.” This is patently false, as it applies to U.S. citizens as well. Section 1022(b)(1) “[Applicability to] United States Citizens” authorized the military detention of U.S. citizens at the military’s discretion.

(See detailed analysis here.)

There is no consensus as to what section 1029 does or does not do, except perhaps, in that it diverts attention away from the fundamental problem. Since the attacks of Sept. 11, 2001, Presidents Bush and Obama, with the assistance of Congress, have systematically dismantled the Constitution and Bill of Rights. Intolerable acts like these were stated reasons in the Declaration of Independence for severing ties with England.

Neither the President nor Congress has the constitutional authority to turn “rights” into “privileges” to be metered out by the Executive Branch.

The U.S. Supreme Court, in Ex Parte Milligan (71 U.S. 2, Syllabus), drew the following conclusions. The reference below to the authority of military commissions “in a State not invaded and not engaged in rebellion” speaks directly to the Article I, Section 9 requirements regarding the suspension of habeas corpus, and the phrase “in which the Federal courts were open” speaks to a requirement in the “laws of war” that persons not recognized as “lawful combatants” be turned over to civilian authorities if the courts are open.

They also addressed the exceptions contained within the 5^th Amendment to the Constitution which allow detention without “presentment or indictment” by a Grand Jury for those persons serving in the “land or naval forces.” Lastly, they affirmed that Congress could not invest ‘military commissions” with any such power.

Lamdin P. Milligan, a resident and citizen of Indiana, was arrested by the military, tried before a military tribunal, and sentenced to death by hanging. Below are three points from the Supreme Court of the United States which contradict the actions of Presidents Bush and Obama post-9/11/2001, and by Congress regarding the application of the “laws of war” on civilians, as both unconstitutional, and inconsistent with the “laws of war.”

U.S. Supreme Court, Ex Parte Milligan (71 U.S. 2, Syllabus),

“7. Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.

8. The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

9. The Federal authority having been unopposed in the State of Indiana, and the Federal courts open for the trial of offences and the redress of grievances, the usages of war could not, under the Constitution, afford any sanction for the trial there of a citizen in civil life not connected with the military or naval service, by a military tribunal, for any offence whatever.”

U.S. Supreme Court Chief Justice Chase, in a separate opinion in the Milligan case, stated that Congress cannot “establish and apply the laws of war” where no war has been declared, or where no war exists.

There has been no war declared against the United States, and the random acts of criminals who dislike or hate the United States does not satisfy the requirement that a “war exists” in the United States. Chief Justice Chase, in exercising Jefferson’s advice to “bind them down from mischief” with the “chains of the Constitution,” stated the following:

Chief Justice Chase, (also from Ex Parte Milligan, 71 U.S. 2, Separate opinion) stated:

“We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.” (emphasis added)

Some Members of Congress will lie to the American people and affirmatively try to deceive us as the effect of laws they have passed under the pretense of “national defense.” Senator Lindsey Graham spoke at length on the floor of the United States Senate during the final debate of the 2013 NDAA that the President should have the authority to deny U.S. citizens their Constitutional rights. Not once in his speech did Senator Graham utter one syllable of concern that Section 1029 would hinder that authority.

In fact, his assessment directly conflicts with that of the proponents of Section 1029, including twice praising President Obama for assassinating a U.S. citizen who was not on a battlefield, who was “out of combat” according to the laws of war, who was not charged with a crime, who was denied legal counsel, who was denied a trial by a jury of his peers, etc… in direct defiance of the “laws of war” he claims to know so well.

Senator Graham stated on December 21, 2012, during the final debate of the 2013 NDAA,

“…If we find an American citizen helping the enemy overseas—this President ordered the killing by drone of al-Awlaki, an American citizen overseas— I believe it was Yemen—and the President said: I have ample evidence he is now assisting al-Qaida overseas to attack American targets and I am going to take him out. Well done, Mr. President. Well done, Mr. President.”

“…There has never been a war in America where somebody within the American citizen community did not collaborate with the enemy. That is happening today. When that day comes and we capture that person, I want as an option the ability to hold them as an enemy combatant, as we did in other wars. They will get their day in court, but they will not be read their rights or given a lawyer on the spot because that would stop intelligence gathering.”

 “…They are seeking aid and comfort from Americans within our own country who are going to side with the enemy, unfortunately. When that day comes, I wish to make sure we have the ability in this war, as in every other war, to hold them and to gather intelligence—“

– Senator Lindsey Graham, from the Congressional Record, Dec. 21, 2012

 The 30-year military lawyer from South Carolina voted “for” the final bill, as did 80 other U.S. Senators. The 2013 NDAA Conference Report did not need Senator Graham’s vote to pass, and it is doubtful, with his strong convictions that he would have voted for the 2013 NDAA if Section 1029 undermined his agenda.

315 Congressmen also voted for final adoption of the 2013 NDAA, including 87% of the Congressional Constitution Caucus, 15% more than the 72% that voted for the 2012 NDAA. Obviously, things are going in the wrong direction if securing the “Blessings of Liberty” is the goal.

Either the Constitution of the United States is the “supreme Law of the Land,” or it is not. The “laws of war” are never superior or supreme to the Constitution.

It is obvious by the actions of the federal government that they have no intention of restoring constitutional governance. It is an inherent duty of the sovereign States, and of the People to take immediate steps to “secure the Blessings of Liberty” by renouncing these intrusions upon our God-given Rights as unconstitutional, and to interpose within the authorities of the Constitution against these ‘intolerable acts.’

In 1821, in “Cohens v. Virginia,” Supreme Court Chief Justice Marshall stated the following:

“The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.”

Vote out of office every Member of Congress, every state legislator, and every local government official that refuses to uphold the Constitution.