2013 version of NDAA makes it even easier to indefinitely detain Americans without charge or trial
By End the Lie
Unfortunately, it looks like the National Defense Authorization Act (NDAA) for Fiscal Year 2013 makes it even easier for the U.S. government to indefinitely detain American citizens without charge or trial.
Despite the many claims that Americans in fact could not be indefinitely detained under the 2012 version of the NDAA, a federal judge stated in court that Americans could be held indefinitely under the act earlier this year and ruled the provisions unconstitutional, a ruling which was quickly reversed by a judge appointed by Obama.
Some news outlets were falsely reporting that the new NDAA actually did more to protect the rights of Americans, but upon further scrutiny, they retracted the statements and indeed concluded that the new NDAA makes it easier for the government to detain U.S. citizens indefinitely.
The misleading passage, found in Section 1033, states:
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.
Attorney Bruce Afran, one of the attorneys representing the activists and journalists who sued the Obama administration over the indefinite detention provisions in the 2012 NDAA, clarified the language to Business Insider.
Afran said that although indeed the provision gives U.S. citizens a right to a civilian trial (Article III) based on “any [applicable] constitutional rights,” there are no rules in place to actually exercise this right which means that detained Americans actually have no way to get access to lawyers, their family or even the court itself once they are detained by the military.
Afran also pointed out that the new NDAA goes beyond the previous version currently in place.
“The new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF]. The original (the statute we are fighting in court) never went that far,” said Afran.
“Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S.,” Afran added.
“The biggest thing about the  NDAA was that you weren’t getting a trial … Nothing in here says that you’ll make it to an Article III court so it literally does nothing,” said Dan Johnson, the founder of People Against the NDAA (PANDA), to Business Insider. “It’s a bunch of words, basically.”
In an attempt to preempt some of the attempts to defend the NDAA, I might point out sub-section c of Section 1033 of the 2013 NDAA which states:
(c) Habeas Applications- A 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) shall be allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody.
While this sounds grand, it means absolutely nothing. Being “allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody” does nothing in and of itself.
The “appropriate district court” is in no way obligated to grant the application and if the way the judicial system has treated the horrifically unconstitutional indefinite detention provisions of the NDAA in the recent past is any indicator, I think it is safe to say that they will reject such applications.
According to Afran, the crux of the issue is that the NDAA “is still unconstitutional because it allows citizens or persons in the U.S. to be held in military custody, a position that the Supreme Court has repeatedly held is unconstitutional.”
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