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Function of Juries | 03 Jan 2013

Obama Signs NDAA with Indefinite Detention Provision Still in Place

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Obama signs 2013 defense authorization, minus indefinite detention ban

On Wednesday, President Barack Obama signed the 2013 National Defense Authorization Act, which outlines the Pentagon’s budget for the following year. Though the newest NDAA still allows for the indefinite detention of American citizens, the president insisted in a signing statement that his administration would not use this power.

“I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens,” Obama wrote. “Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”

He wrote an identical two sentences in his signing statement for the 2012 NDAA.

But to the American Civil Liberties Union, the president’s word alone was insufficient. “President Obama has utterly failed the first test of his second term, even before inauguration day.” said Anthony Romero, executive director of the American Civil Liberties Union, in a statement.

The infamous National Defense Authorization Act (NDAA) for Fiscal Year 2012, which was passed by the United States House and Senate and signed by President Obama, contained blatant and egregious violations of constitutional and human rights. For example, Section 1021 provided for indefinite detention without trial by jury of people accused, but not convicted, of a vaguely defined set of offenses including the effectively boundless charge of committing a “belligerent act” against the United States or its coalition partners.

While the Obama administration promised not to use this provision, it then proceeded to defend it in court against a group of journalists who feared that their First Amendment activities could land them in indefinite detention. This past May, a U.S. District Court judge enjoined a portion of the 2012 law dealing with indefinite detention, identifying it as unconstitutional on both First and Fifth Amendment grounds. In response, the Obama administration filed an emergency motion to lift the injunction pending an immediate appeal of the ruling. It’s not clear why such an emergency measure would be needed to keep in place an unconstitutional power the president promised never to use. Nonetheless, the injunction was stayed on appeal, thereby restoring the indefinite detention provision of the 2012 NDAA measure while the case wound its way through the court.

Meanwhile, legislative measures were attempted to remedy this pernicious end run around the Bill of Rights. In December 2012, the Senate passed the NDAA for Fiscal Year 2013, adding a Section 1033, also known as the Feinstein-Lee Amendment. The Feinstein-Lee Amendment was put forth to correct, at least partially, the unconstitutional indefinite detention provisions. The proposed amendment disallowed “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.” (Some parties pointed out flaws in the amendment as written, such as that it could be interpreted to mean that Congress could authorize indefinite detention by enacting a statute, which does not meet the standard set in the Bill of Rights.)

While the Feinstein-Lee Amendment was included in the version of the bill that passed the Senate, it was not present in the bill as passed by the House and was subsequently stripped from the bill without explanation from the final language of the bill by the conference committee resolving differences between the Senate and House versions.

Closing the loop yesterday, President Obama signed the National Defense Authorization Act of 2013, complete with the indefinite detention provision intact, giving only a non-legally binding verbal assurance that he won’t use it. Since the Constitution itself, complete with the Fifth Amendment, is supposed to be the guarantee that government will take no such actions, however, passing and signing a bill that directly contradicts that Constitutional guarantee puts all of us at risk.

As was the NDAA passed for 2012, this version of the National Defense Authorization Act sells out the due process promises made in Constitution as well as everyone who could potentially be charged with any of the limitless undefined offenses the government could possibly invent. When government acts as lawmaker, judge, jury, and prison warden, unburdened by any mechanism of accountability to or check on its power by those subjected to its whims, justice for our families and neighbors is easily subverted in favor of political power and privilege.

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