The NDAA Lives On: US Constitution in Peril

Basic protections of the Constitution in Peril

Basic protections of the Constitution are being challenged by the Patriot Act

by John Amaruso

Sen. Dianne Feinstein and others in Congress attempted to pass an amendment which would have protected American citizens from indefinite military detainment aka the denial of rights of Habeas Corpus. It was later replaced with a different provision, which ultimately deferred the responsibility of protecting individual rights on the Supreme Court. The bill was rejected on the grounds that the Supreme Court and the Constitution already protect these rights. Senator Dianne Feinstein reacted to the loss by saying, “I was saddened and disappointed that we could not take a step forward to ensure at the very least American citizens and legal residents could not be held in detention without charge or trial,” Feinstein said. “To me that was a no-brainier.”

Dianne Feinstein photo Constitution in Peril

Dianne Feinstein is the senior United States Senator from California.

The amendment originally proposed by Sen. Dianne Feinstein was as follows: “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention”

This is almost common sense to most Americans who understand the Constitution. The 4th amendment of the Constitution which protects citizens from unreasonable search and seizure, was later modified by John Adams, who thought it appropriate to define what he meant by “unreasonable”.

An Old Constitution in Peril

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.

While John Adams thought this added clarification of the 4th amendment was appropriate and necessary, those in today’s Senate beg to disagree. The rationale from leaders in the Senate is that there is no need to double down since those rights are already protected under the law of the land. While this may be true, the Patriot Act openly disregarded those fundamental rights and sought to alter what is “reasonable”.

The NDAA’s language is a bit more vague. An extension of the Patriot Act, the authority of the President under the Authorization for Use of Military Force Against Terrorism, a joint resolution passed in the wake of 9/11, includes the power to detain, via the Armed Forces, any person (including U.S. citizens), has changed the definition even further as to what “reasonable” is. They have defined sufficient cause as anyone who is

  1. Associated with Al-Qaeda or seen as harboring or aiding in Al-Qaeda war efforts.
  2. Any “Belligerent act” against the United States or its coalition allies in aid of such enemy forces.

Not only this, the act authorizes trial by a military tribunal or “transfer to the custody or control of the person’s country of origin”, or transfer to “any other foreign country, or any other foreign entity” until hostilities commence.  Mind you, one does not have to be convicted, one merely has to be suspected.  Can someone define what a “Belligerent act” is? Or is that left to the discretion of the military tribunal which under this law, is your only form of due process permitted?

Constitution in Peril george w bush speaking

George W. Bush was a big supporter of the Patriot Act while President

To top this off, what defines the hostilities as being over? This is a “Global War on Terrorism” as former President Bush liked to eloquently put it. Within those words, “Global War on Terrorism”, lies an insidious intention on behalf of those who govern. It implies that this war is not only confined to us, but to all citizens everywhere. It implies that ‘terrorism’ is an active war between states and peoples. Both of these implications mean that this “war” may have no end in sight.

Seeing that terrorism has plagued most civil societies since the beginning of man’s path towards civility, when will be the end of terrorism? Who can officially declare that the “war” on terrorism is over? Then again, what exactly is terrorism? Does it come in a specific form? Is terrorism only when someone affiliated with a radical Islamist organization commits a violent act against civilians and military personnel?  What about denunciations of government actions? The foundation and reasoning for all insurgencies everywhere. Is that openly advocating or supporting terrorism?

Terrorism and Habeas Corpus

Is being “belligerent” marching through the streets? Actively demonstrating? Openly calling out the government for errors in judgment, crimes against humanity, suppression and corruption?

Is that terrorism? Because any smart enough government lawyer could successfully argue for it. What we are seeing here is a foggy, vague bill with dangerous implications which threaten us all. With the right of due process and Habeas Corpus being suspended in an effort to combat an endless war on terrorism, the inalienable rights given to us by our founders and which most of the world revere us for are being eroded by those who are sworn to protect them.

The NDAA lives on…

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