Dems Introduce Legislation to Repeal Indefinite Detention of Americans

By Mac Slavo

Sen. Mark Udall (D-CO) and Rep. Adam Smith (D-WA) have unveiled legislation in the Senate and House which would ensure that any individual detained on U.S. soil under the Authorization of Military Force (AUMF) has access to due process and the federal court system. The bill would repeal the provision in the National Defense Authorization Act of 2012 that requires the military to detain on U.S. soil any individuals suspected of terrorism.

Senator Mark Udall and Rep. Adam Smith launch an effort to protect U.S. citizens from indefinite detention and preserve civil liberties.

The National Defense Authorization Act, signed by President Obama while most Americans remained oblivious to its existence as they brought in the New Year, allows for the indefinite detainment of American citizens without charge, evidence or trial. And though supporters of the NDAA argue that the bill is designed only for foreigners engaging in terrorism against the United States, public outcry over that much power residing with the Executive Branch forced the President to include a ‘promise’ at signing to the effect that he would never use the provisions of the Act against American citizens.

Despite the promises, because the NDAA does not clearly exclude Americans, there is no legal ramification for the President or a  future Chief Executive if they implement the law against Americans and hold them indefinitely without due process.

The Due Process and Military Detention Amendments Act introduced by Sen. Udall and Rep. Smith directly targets section 1021 of the NDAA which allows for military imprisonment of those individuals deemed to be working with terrorist organizations or anyone committing a “belligerent act” against the United States. Because American citizens are not implicitly excluded in 1021, they fall under this provision in direct violation of Article III of the U.S. Constitution, which requires a public trial by jury for all crimes committed, including those against the United States.

The new bill would effectively repeal portions of the NDAA, namely those that allow for American citizens to be targeted by Executive Order:

12   IN THE UNITED STATES.—In the case of a covered person
13   who is detained in the United States pursuant to the Au-
14   thorization for Use of Military Force, disposition under
15   the law of war shall only mean the transfer of the person
16   for trial and proceedings by a court established under Ar-
17   ticle III of the Constitution of the United States or by
18   an appropriate State court. Such trial and proceedings
19   shall have all the due process as provided for under the
20   Constitution of the United States.’’

A fact sheet has been made available by Senator Udall’s office, portions of which are reprinted below:

FACT SHEET: The Due Process and Military Detention Amendments Act of 2012

  • The Due Process and Military Detention Amendments Act of 2012, which is grounded in the core principles of the United States Constitution, ensures that any individual detained on U.S. soil has access to due process, the federal or state court systems and will not be detained indefinitely by the military pursuant to the Authorization for Use of Military Force (AUMF)
  • The current law gives the Executive Branch too much power. The bill strikes an ill-conceived and unnecessary provision in the FY2012 National Defense Authorization Act (NDAA) that relates to mandatory military custody (section 1022).
  • The bill also amends the permissive detention provision of FY2012 NDAA (section 1021) to clarifythat the only option for anyone detained in the United States pursuant to the AUMF is the Article III courts (federal) and state courts. This bill prohibits military commissions, indefinite detention and transfer to foreign countries for individuals detained in the United States.
  • The bill also states that any trial proceedings “shall have all the due process as provided for under the Constitution” and ensures that anyone detained in the United States pursuant to the AUMF will be tried in our civilian courts and receive all the due process rights enshrined in the Constitution.

For more information read the full fact sheet or first draft of the proposed legislation.

The NDAA was a bipartisan effort that included yes votes from 83 Senators and 283 members of the House. Curiously, included in this tally of Congressmen that voted for the bill were Sen. Mark Udall (D-CO) and Rep. Adam Smith (D-WA), who were, apparently, for indefinite detention before they were against it.