Indefinite Detention of Americans Without Trial an Official, Legal Power of the President

The whole sad update here.

Rand Paul's attack on the bill is here.

This was an entirely bipartisan effort, with the 13 nay votes spit equally between the parties

Nay ID Crapo, Michael [R]
Nay ID Risch, James [R]
Nay IL Durbin, Richard [D]
Nay IA Harkin, Thomas [D]
Nay KY Paul, Rand [R]
Nay MD Cardin, Benjamin [D]
Nay MN Franken, Al [D]
Nay OK Coburn, Thomas [R]
Nay OR Merkley, Jeff [D]
Nay OR Wyden, Ron [D]
Nay SC DeMint, Jim [R]
Nay UT Lee, Mike [R]
Nay VT Sanders, Bernard [I]

Democrats have been unbelievably disappointing on civil liberties issues the last several years.  The same group that sniped relentlessly (and correctly) at George Bush about Guantanamo have now reversed themselves 180 degrees now that their guy is in office.


  1. Chris:

    But obama said he won't do it, so its all ok!

  2. Hunt:

    This showed up on another blog - just saying-

    "Whereas, on the 14th of December, 2011, the House of Representatives of these United States voted, in the form of the National Defense Authorization Act for Fiscal Year 2012, in favor of indefinite military detention, without charges, of American citizens on American soil, without due process of law, at the discretion of the government alone;

    Whereas, on the 15th of December, 2011, the Senate of these United States voted in favor of the same bill;

    Whereas, on the 31st of December, the President of these United States signed the same bill into law;

    Whereas, the proscription against the use of military force to police the populous has been an essential feature of American civic life and civic liberty since the arrival of our civilization upon this continent;

    Whereas, the wanton violation of this proscription was one of the chief causes of the separation of the American people from their government in Great Britain;

    Whereas, the Constitution so chartering the government of these United States, in Article III Section III, states that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

    Whereas, the Constitution so chartering the government of these United States, in the Fifth Amendment, states that no person shall be “deprived of life, liberty, or property, without due process of law”;

    Whereas, the House of Representatives, the Senate, and the President of these United States have disregarded the plain text of the Constitution;

    Whereas, in openly disregarding its founding document, the government of these United States has lost any semblance of legitimacy;

    Whereas, the use of such draconian measures has been an essential feature of the enforcement of tyranny by every totalitarian governments of the 20th century;

    Whereas, the use of such draconian measures is carefully calculated to quash all political dissent amongst a captive people;

    Whereas, the codification of such draconian measures effectively nullifies all civil liberties the people may hope to hold;

    And whereas, the codification of such draconian measures is an act of war against the populous at large;

    Therefore, be it declared that a STATE OF WAR formally exists between the Government of these United States and the People of these United States, perpetrated by that Government against the People.

    We, the People of these United States, declare any and all attempts to enforce the provisions of the NDAA to be unlawful, void, and of no force.

    We declare ALL WHO voted in favor of the NDAA, and ALL WHO attempt to enforce the NDAA to be traitors to these United States, punishable under law.

    We SHALL DISOBEY, APPREHEND, OR RESIST WITH FORCE, at our discretion, any person who attempts to enforce the provisions of the NDAA.

    We SHALL NOT aggress against any Federal, State or local government employee who shall not attempt to enforce or aid and abet the enforcement of the NDAA, they being as trapped as the rest of the populous.

    Such STATE OF WAR shall continue until the NDAA is stricken from the code of law, and all who had hand in the NDAA are removed from positions of power."

  3. Daublin:

    Hunt is on the right track: Americans are making a grave error to get caught up in spats between Republicans and Democrats. We should spend more energy thinking about the U.S. government as a whole. We should stop investing so much of our identity in what our federal government does.

    I find it helpful to remind Americans about all the other governments they are subject to. For example, ponder the state government of the state you live in. Do you feel like good or bad decisions in that government have had radical differences in what residents of the state have accomplished? Going forward, do you think that your state government, if it makes the right choices, can revitalize society in the geographic patch of land it sits on?

    Most everyone says obviously no. Likewise for the United Nations, and likewise for county, city, and neighborhood governance. We should apply the same point of view to the U.S. government. It's just a government for a geographic patch of land. It needs to not suck, but beyond that, there's not much good it can do.

  4. I Got Bupkis, Fomenter of "small-l" libertarianism:

    >>> Democrats have been unbelievably disappointing on civil liberties issues the last several years. The same group that sniped relentlessly (and correctly) at George Bush about Guantanamo have now reversed themselves 180 degrees now that their guy is in office.

    I believe the term you're searching for is "partisan hacks".

  5. Don:

    "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

    Uh, what's the penalty for violating the Oath of Office? Apparently, not very much (yet).

    I gotta tell you, these guys REALLY seem to WANT a Civil War. I'm thinking they think they have all the guns. I'm thinking folks in the military know where to aim if it comes down to it. It will be interesting the first time a military officer refuses one of these orders on the grounds that it's a clear violation of both the Constitution.

    I have infinitely more faith that our military takes their Oath seriously than the Senate or Congress (or the President, for that matter).

  6. tehag:

    "reversed themselves 180 degrees"

    Just like the last time and time before and the time before that..., what's disappointing about this entirely natural, expectable, and anticipatable progression? Politicians' behavior punctures delusions. News at 11.

  7. me:

    I don't see a reversal here at all. Obama, just like Bush before him, is a power politican. His job is to say anything that gets him elected by the blind idiots who believe what he says. Once in office, his job is to ensure that more taxes are wrought from the American populace and end up in his social networks pockets. Meanwhile, in order to protect the interests of his in-group, it's important to reduce civil liberties and convert rule of law to pure oligarchy. The Dems vs Reps debates are all about false choice; both pursue the same policy with small differences in the tribe that ultimately benefits. The burdens on the other hand... that's where the rest of us come in. Depressing.

  8. mahtso:

    "Whereas, the House of Representatives, the Senate, and the President of these United States have disregarded the plain text of the Constitution;"

    In the comments to another post about this issue, I asked: what provision on the Constitution is being violated. No one answered. So I'll ask again. (I don't see how it could be the 5th A, b/c that A does not describe or define "due process.")

  9. I Got Bupkis, Fomenter of "small-l" libertarianism:


    The concept of due process is and has been well-established part of English legal jurisprudence for centuries, and was already a well-defined part of English Common law at the time of the Founders. Since that (and not, say, the Code Napoleon or the Qu'ran are the basis for our system of laws) it was not needed to "define" so obvious a term... (Well, unless your name is "Clinton", in which case there are no actual words meaning anything fixed).

    So yes, that is what is being violated here: due process.

    If you still have an issue with that, I suggest you look at, oh, the wiki on the term to start with...

  10. EscapedWestOfTheBigMuddy:


    Article I, section 9

    [...] The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. [...]

    There is neither a state of invasion, nor of rebelion and as such the congress is not empowered to suspend habeas corpus and the President (in the person of the executive branch) is required to explain why they hold some one if asked.

    Amendment V:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury [...] nor shall any person be [...] deprived of life, liberty, or property, without due process of law; [...]]

    (I've elided some excepts the the first part that don't apply in general and some intervening text in the second, but there is no escape from the meaning of the text.)

    The law purports to allow the president to hold some person to account without indictment and to deprive them of liberty without due process (see below for a definition).

    Amendment VI:

    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.

    This sets a bare minimum for the due process required by the 5th, and a star chamber declaration from the Presidents desk does not qualify.

    Aside: If you prefer to think of these a treason actions then the prescribed due process gets stiffer still thanks to Article III, section 3.

  11. mahtso:

    Big Muddy,

    Thanks for the information. This is the first time I’ve seen an allegation that Habeas has been suspended.

    As to 5 and 6 A, the text shows that these deal with crimes, so I don’t know how they would apply to the current law. Given that detentions in Guantanamo have been upheld and that those people are not getting civilian trials, it is safe to conclude that there is a class of offenses to which the 5 and 6 A do not apply.

  12. Mark:

    Terrorist acts are acts of war. The executive clearly has the power to detain terrorists, forever if need be. It is sad that we need to even discuss such issues because clearly we do not want terroristic threats against us. But that is the reality of the world.

    Further, due process is being served. Each of these detainees are given hearings to determine their status. Many of the detainees, in fact the vast majority of them, have already been processed and released, or turned over to their countries of origin to face their particular justice.

  13. Gil:

    Oh no, Mark, Thomas Jefferson & co. stating that the power rests with the People therefore they can violently overthrow the Government and replace it without fear of reprisal.

  14. Mark:

    "hey can violently overthrow the Government and replace it without fear of reprisal"

    The quotations of Thomas Jefferson are some of the most misused statements around. So, according to your "logic" Timothy McVeigh should never have been arrested, much less executed, for his attempt at "violently overthrowing" the government????? Nice try.

    Terrorist acts are acts of war. THe executive has the UNDENIABLE power to detain such combatants. THey are not protected by the Genveva Convention (whose primary purpose, btw, was to reduce such acts by giving nations "incentives" to follow the "rules" of war). Subject to the proper hearings, they can be held for how ever long they are held for.

    To argue otherwise severely damages the safety of this nation, and the safety of the very rights you claim to uphold.