Archive for category NDAA
Posted by ocoathkeepers in 10 Orders We Will Not Obey, 2nd Amendment, Bill of Rights, CA Oath Keepers, California Sheriffs’ Posse Call & Fundraiser, Constitution, County Sheriff, County Sheriff Project, CSPOA, Declaration of Orders We Will Not Obey, Gun Laws, gun-control laws, Guns, Honor Your Oath, Martial Law, NDAA, NDAA 2013, Nullification, Nullify Now, OATH BREAKERS, Oath Keepers, Oath Keepers Billboard Campaign, Oath Keepers of San Diego, Oath of Office, OathKeepers, Operation Sleeping Giant, Orange County, Orange County CA Oath Keepers, Politics, Rallys/Protests, Shall Not Be Infringed, Sheriff, Sheriff Mack, Stewart Rhodes, Traitors, TSA, UN’s Agenda 21, Unconstitutional, Unconstitutional Patriot Act, United States military, US firearms, US History, Veterans, War on Terror, World’s Largest Private Army on February 9, 2013
Stewart Rhodes, Chuck Shea, and John Oetken will be gathering with the Oath Keepers in the area to formalize a Northern California Chapter. Please get the word out and spread this information and share the picture.
We will also be fundraising for the Oath Keeper Billboards to put up near Beale AFB California.
This article was written by Eric Blair and originally published at Activist Post
By now anyone who pays attention to politics knows that the National Defense Authorization Act (NDAA) of 2012 contained a provision that allows for the indefinite detention of U.S. citizens without charge or trial.
Section 1021 of the 2012 NDAA states that anyone suspected of being involved in terrorism or “belligerent acts” against the U.S. can be detained by the military under the so-called Authorization for Use of Military Force, including American citizens.
In other words, the war on terror has been officially declared on U.S. soil and everyone is now considered a potential combatant in this war.
Senator Lindsey Graham pretty much summed it up when he said, “The homeland is part of the battlefield and people can be held without trial whether an American citizen or not.”
Even though this clause is a direct violation of citizen’s rights under the 6th Amendment of the U.S. Constitution, there was scarcely any dissent and hardly a peep from the corporate media when Obama signed it into law under the cover of darkness late on New Year’s Eve 2011.
This year Senator Rand Paul once again blocked the passage of the NDAA for 2013, which the Senate hoped to rush through before the Thanksgiving recess. Using a filibuster, Paul is attempting to force a vote on his amendment to exempt American citizens from the indefinite detention clause.
Rand Paul’s amendment simply reaffirms the 6th Amendment to the U.S. Constitution:
A citizen of the United States who is captured or arrested in the United States and detained by the Armed Forces of the United States pursuant to the Authorization for Use of Military Force (Public Law 107–40) shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
Compare that to the 6th Amendment of the Constitution:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
It’s sad that it is so difficult to get elected officials to debate, let alone vote on, legislation that is in direct violation to the Constitution that they swore an oath to uphold. But these are certainly Orwellian times where normal thinking no longer applies.
As Rand Paul points out in the video below about the 2012 NDAA vote, “The senate voted 55 to 45 to allow indefinite detention of US citizens without jury trial. We have become Orwellian without even knowing it.”
When the Senate resumes after recess, the NDAA 2013 will likely pass even with a recorded vote on Paul’s amendment, but at least the traitors will put themselves on display for all to see.
If there are any true oath keepers in positions of power, this would be a perfect time to arrest those who vote against this amendment. Their treason to the Constitution couldn’t be any clearer.
Please read article at the Tenth Amendment Center:
NDAA Sections 1021 and 1022: Scary Potential
by Rob Natelson
Are the detainment provisions of the 2012 National Defense Authorization Act serious?
Yes they are.
This is a complicated area, and there has been a lot of word-fudging in spinning this subject. So bear with me as we take things step by step.
* The U.S. Constitution generally guarantees the “Privilege of the Writ of Habeas Corpus.” The writ of habeas corpus is a court order a prisoner can obtain requiring the jailer to come into court and justify his detention of the prisoner. It is a traditional way in which those held can demand a fair trial by jury in a civilian court. The writ of habeas corpus is a treasured part of our traditional liberty. Belief that the British were infringing it was one cause of the American Revolution. (The writ is called a “privilege” rather than a “right” because it is a creation of the legal system rather than a natural right, like the right to free speech.)
* By the Constitution’s original meaning, the privilege of habeas corpus is guaranteed to all those in “allegiance” to the United States. “Allegiance” is an old technical legal term that includes both citizens and aliens legally in the country.
* By successfully convincing a judge to issue a writ of habeas corpus, citizens, foreign visitors, and legal residents may obtain a hearing that may induce the judge to order a civilian trial. It matters not how heinous the crimes they are accused of. For example, a person charged with trying to blow up a building on behalf of a foreign power can be charged with treason. But while still merely accused, he is entitled to all the protections of due process, including a fair, public trial before a jury of his peers.
* By the Constitution’s original meaning, habeas corpus does NOT apply if the Congress, as an incident to its war power, “suspends” the writ for a particular time and place. However, the Constitution says that Congress may “suspend” the writ only “when in cases of rebellion or invasion the public safety may require it.” Congress has not suspended the writ, and it is doubtful that occasional acts of terrorism constitute a sufficient “rebellion or invasion” to justify doing so. Even if Congress could suspend the writ, a Bill of Suspension would be a serious, much-debated measure for which Congress would have to assume direct political accountability. Political accountability is not a big priority with Congress right now.
* Members of all belligerent armed forces (both sides) are subject to military, not civilian, law.
* Thus, by the law of war, the executive (and the military officers under him) may incarcerate for the duration of the conflict any enemy combatants captured in the theater of war.
* By the Constitution’s original meaning the executive has no constitutional power (without formal congressional suspension of the writ) to lock up citizens or lawful aliens apprehended outside the war theater. If accused of crime, the accused has the privilege of a jury trial in a civilian court. By the Constitution’s original meaning, this constitutional right does not apply to enemy aliens, wherever apprehended.
* In 2008, the U.S. Supreme Court (erroneously, in my view) held that alien Guantanamo detainees have the right to habeas corpus to determine if they are really enemy combatants. Still, under this case if they are found to be enemy combatants they can go back to prison indefinitely.
Now, with that background, let’s look at the critical language of the Act, again step by step:
§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.
Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.
(b) . . A covered person under this section is any person as follows:
Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens with U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?
c) . . The disposition of a person under the law of war . . may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .
Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”
(d) . . . Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!
(e) . . . Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
Comment: This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. This is true because neither the Bush nor the Obama administration has had the audacity to round up U.S. citizens without our borders and hold them indefinitely without trial.
Here are the principal Supreme Court decisions the law preserves:
(1) A post-Civil War case (Ex Parte Milligan) saying a citizen non-combatant incarcerated outside the theater of war is entitled to habeas corpus. (This holding doesn’t help those accused of being combatants.)
(2) The World War II-era Quirin decision that permitted President Roosevelt to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. Obviously, this decision—which is widely acknowledged to be egregious—offers no protection against the National Defense Authorization Act.
(3) The 2004 Hamdi case, which says that a U.S. citizen captured bearing arms in the war theater is NOT entitled to habeas corpus. He is entitled only to a minimal military hearing without a jury and without many of the traditional due process protections.. (Some apologists for the National Defense Authorization Act are claiming the Hamdi case granted a right of habeas corpus; this claim is flatly wrong.)
(4) The 2008 Boumedienne decision, which held that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.
Obviously, none of these prior holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant. So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.
§ 1022: (b) (1) . . . The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) . . . The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
Comment: This section says that the administration is not REQUIRED to keep a U.S. citizen or legal resident alien in indefinite military custody. But it does not prevent the administration from doing so.
* * * *
When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential. If the administration does try to use it to lock up American citizens without habeas corpus, the Supreme Court probably will void the incarceration and require a civilian trial. But in the normal course of events, vindicating one’s rights could take years.
Of course, in America, we traditionally don’t lock up citizens on mere suspicion. . . .
Or is that is now changing?
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See: www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.