Saturday, January 12, 2013

An (Ir)rational Analysis of the NDAA


Yesterday, PoliticusUSA ran an article titled "A Rational Analysis of NDAA 2013."

The article in anything but.  It is riddled with inconsistencies, falls for nearly every myth that exists on the 2012 AND 2013 NDAA, and defends the President of the United States. If there is a  top prize for the worst article on the NDAA this year, this one takes the cake.


We tear down the article, piece by piece:


There are many issues, legally, with the argument you present here.


  • #1 You mentioned this:


“When a bill has constitutionally dubious or otherwise problematic provisions, the President may issue a signing statement to provide clarity and voice his objections.”


That is blatantly incorrect. The Constitution does not allow for signing statements, and in fact our current President heavily criticized President Bush for using them.


  • #2 “In other words, the President does not have independent authority to suspend habeas corpus.”


You’re correct here. However, the Habeas Corpus issue is a red herring. The 2012 NDAA did not suspend Habeas Corpus (and neither has Congress), but it did apply the laws of war to U.S. soil. The fact that you can be indefinitely detained by the military is far worse than not getting a Habeas hearing.


  • #3 “At best, he can instruct agencies to address the issue in a manner consistent with his interpretation of the constitution, as he did with his 2012 signing statement.”


Again, the President has NO Constitutional authority to issue a signing statement. Since he has however, it is important to note that nowhere in this statement does he instruct agencies not to enforce the indefinite detention provisions. The President only


  • #4 “Senators Diane Feinstein and Mike Lee proposed an amendment that seemed to satisfy critics on both sides of the political spectrum”


This Feinstein Amendment mainly satisfied critics of the NDAA in the U.S. Senate, most of whom voted for the 2012 NDAA anyway.


Grassroots groups, the people on the front lines fighting indefinite detention, and the plaintiffs in the NDAA lawsuit all agreed the Feinstein-Lee Amendment was “Smoke and Mirrors.”


From Amnesty International, to Oathkeepers and The Tenth Amendment Center, People Against the NDAA, Belligerent Act, the ACLU, etc., groups from across the political spectrum slammed the Feinstein-Lee Amendment as a “fumble,” and a fake.


  • #5 “Feinstein offered a constitutionally unsatisfying but politically realistic explanation – because that’s what will pass.”


Yes, it’s Constitutionally unsatisfying. The Senator does NOT take an Oath to be politically savvy. She takes an Oath to support, uphold, and defend the Constitution of the United States of America. She can negotiate with anything else, the Constitution is un-negotiable.


  • #6 “But on its face, the Gohmert amendment contradicts that criticism. To paraphrase, “Nothing in . . . the [NDAA] . . . shall be construed . . . to deny any Constitutional rights in a court ordained or established by or under Article III.”


Many things, on their faces, seem different than they really are. Even people have this issue, as you never know what a roommate, friend, or partner is like until you get to know them behind the mask many people put on for the world.


The key to understanding the Gohmert amendment is the word “in.” The problem with the 2012 NDAA was NEVER getting your Constitutional rights in an Article III Court. The problem with the 2012 NDAA was that you would never get your Constitutional right to a trial in the first place.


The 2012 NDAA reads:


“1021 (c)(1) Detention under the law of war WITHOUT TRIAL until the end of the hostilities authorized by the Authorization for Use of Military Force.” (emphasis added)


Regardless of whether or not you would get your rights in an Article III Court, you won’t get to court in the first place. You can’t, therefore, get your rights IN an Article III court. You would be indefinitely detained by the military without trial, only wishing the Gohmert Amendment would activate..but it doesn’t until you get into an Article III Court.


  • #7 “Similarly, the Article 3 section of the NDAA says, in short, that all other rights as determined by the judiciary are also protected.”


As addressed above, this is incorrect.


  • #8 “Since the courts recognize that the right to habeas corpus inexorably leads to due process, and since the NDAA explicitly protects all other constitutional rights, all rights in criminal proceedings are protected.”


Again, this is completely incorrect. You will NOT get a trial, and therefore never receive any Constitutional protections whatsoever. The Gohmert Amendment does nothing to guarantee you a trial, and therefore does nothing to protect your rights.


  • #9 “The president’s signing statement does not contain any objections or comments pertaining to section 1031 because it is, in fact, consistent with the constitution.”


It is technically “consistent” with the Constitution, but does not pass Constitutional muster to protect our rights. It is as consistent with the Constitution as a pillow. The pillow does not violate the Constitution, technically, but it also does nothing to protect your rights. This amendment is a ball of fluff, and not worth the paper it is written on.


  • #10 “I would like to see Gitmo closed. I’m disappointed that closure is unlikely in the near future. At the same time, the President doesn’t have a magic wand nor does he have dictatorial powers.”


If we are following the logic you have used in this article, this statement would be incorrect. You assert that signing statements will void current law, and are Constitutional. The closing of Gitmo could be accomplished by executive order, if you follow that logic. Either this portion of your article is inconsistent…or…the President has that (unConstitutional) magic wand called an Executive Order.


  • #11 “While the NDAA 2012 raised legitimate concerns about the indefinite detention of Americans, the same cannot be said of NDAA 2013. As noted above, there were two proposals to address this problem.”


You are correct, in regards to how the same cannot be said of NDAA 2013. The 2013 NDAA is a standalone authorization for funding, and does not replace the 2012 NDAA. The 2012 NDAA is written into statute, and is only modified by the 2013 NDAA.


However, there were not two proposals to solve this problem. There were six.


In list form, here they are:


H.R. 3785, a Bill to Repeal Section 1021 of the NDAA

The Landry Bill

The Gohmert Amendment

The Smith-Amash Amendment

The Due Process Guarantee Act

The Feinstein-Lee Amendment


  • #12 “Notwithstanding the political realities, critics of the Feinstein/Lee amendment rightly pointed to the fact that while the amendment protected against unlawful detention, that protection was under inclusive in a manner that is inconsistent with the constitution. The Gohmert amendment rectified that problem.”


As we have covered several times on our website, the Feinstein-Lee amendment was nothing of the sort. In fact, even Rep. Justin Amash said as much.


The idea that the Gohmert Amendment rectified the problem with the 2013 NDAA is also very incorrect, as I have pointed out above.


I am not surprised at some of the fallacies described in this article. Unfortunately, you have fallen victim to the lies told to you by Congressmen and Senators alike. These sections were made to deliberately confuse, and did so here.


Look over my analysis here, and you’ll see it is quite correct. If you find an inconsistency, let me know. For now, this article is an (Ir)rational analysis of the 2013 NDAA.

Dan Johnson

Founder, People Against the NDAA




An (Ir)rational Analysis of the NDAA

No comments:

Post a Comment