Sen. Dianne Feinstein’s amendment to end the indefinite detention provision under NDAA has passed in the U.S. Senate. The “Due Process Guarantee Amendment” has a purpose to prohibit the use of military force to detain a citizen, or lawful permanent U.S. resident, without charge or trial.
“Purpose: To clarify that 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.”
The amendment appears to end the controversial NDAA provision that allows the President to detain U.S. citizens he deems a threat, without a charge or trial. However, there are many problems with this amendment. Given the fact that the U.S. Constitution in no way gives Congress, or the President, the power to indefinitely detain American citizens without a charge, trial, or attorney (except in cases of rebellion or invasion), you have to wonder how this amendment improves upon the original NDAA bill.
In this amendment, it states:
“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.”
Apparently, non-citizens in the U.S. are not given the same privileges. That’s a problem. The Bill of Rights to the U.S. Constitution applies to everybody who comes in contact with the government, not just U.S. citizens or permanent residents. The fact is, this changes nothing, as the military is still able to indefinitely detain individuals in the U.S. without a trial. It would be a dangerous precedent for the Congress to decide who is to be protected by the Bill of Rights, and who isn’t. What group will be next?
Additionally, another loophole in the amendment, only allows for the right to a trial, if Americans are “apprehended in the United States.” U.S. citizens abroad are still able to be indefinitely detained by Presidential order. A very weak wording of the amendment still gives the President some wiggle room in case he needs it.
Probably the most startling fact of this is that it does not even prevent the unlawful detention of American citizens at all. The wording of the amendment still allows for Congress to circumvent the Bill of Rights by stating that an individual cannot be detained without a trial, “unless an Act of Congress expressly authorizes such detention.” Of the delegated powers given to Congress, nowhere does it allow Congress to ignore the Bill of Rights, and indefinitely detain American citizens without trial. In fact, the Constitution provides for the opposite, which can be found in the Sixth Amendment.
“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.”
Furthermore, Article I, Section 9, Clause 2 of the U.S. Constitution states that, “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.” Since the wording of Sen. Feinstein’s amendment allows for suspension of habeas corpus by an “Act of Congress,” it is unconstitutional, illegal, and just plain dangerous to the rights and liberties of U.S. citizens.
The real answer to end NDAA: support state nullification efforts. That is truly the “rightful remedy” to end the right of the President, or Congress to indefinitely detain anybody on American soil, without a trial.
Matt Renquist is a blogger for the Tenth Amendment Center. He holds a Bachelor's Degree from Colorado State University and currently lives in Colorado.
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