Obama Threatens Veto of NDAA 2013: Too Many Restrictions on His “Exclusive” Authority

Last week, several major news outlets reported on a Statement of Administration Policy (SAP) released by the White House regarding the Fiscal Year 2013 version of the National Defense Authorization Act (NDAA).

In the SAP, President Obama lays out 32 reasons why he is likely to veto the newest iteration of the NDAA.

The headlines announcing the President’s promise to reject the NDAA are identical to those published early last December, just a couple of weeks before the President took time off from his Hawaiian vacation to sign the measure into law. Somehow, President Obama was able to set aside his issues with the act and grant himself the power to indefinitely detain Americans without charge or trial.

Recently, we reported how those very provisions — those purporting to give the President the expansive and unconstitutional powers described above — remain in this year’s NDAA, despite the best efforts of a handful of constitutionally-minded representatives.

Last month, by a vote of 238-182, members of Congress rejected the amendment offered by Representatives Adam Smith (D-Wash.) and Justin Amash (R-Mich.) that would have repealed the indefinite detention provision passed overwhelmingly last year as part of the Fiscal Year 2012 NDAA.

Not only does the 2013 NDAA retain the indefinite detention provisions, but the section permitting prisoners to be transferred from civilian jurisdiction to the custody of the military persists, as well.

“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate on his amendment.

In his impassioned speech supporting his proposal, Representative Smith reminded his colleagues that the NDAA granted to the President “extraordinary” powers and divested the American people of key civil liberties, as well as divesting civilian courts of their constitutional jurisdiction.

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Supreme Court to “Decide” Whether NSA Domestic Wiretapping Is Beyond the Law

Last Monday, the Supreme Court of the United States granted a petition to hear a lawsuit calling for an end to another case challenging the constitutionality of the government’s warrantless wiretapping program.

This Orwellian (and unconstitutional) surveillance scheme was established in the wake of the attacks of September 11, 2001 and was explicitly authorized by an act of Congress passed in 2008.

Naturally, the Obama administration is pleased by the high court’s announcement, as it has followed the tack laid down by the George W. Bush White House that holds that the federal government’s monitoring and recording of the private communications of American citizens is not subject to legal scrutiny.

At issue in the case is the interpretation of the Federal Information Securities Act (FISA) Amendments Act, which has been challenged by the American Civil Liberties Union (ACLU) and other civil rights watchdog groups. The FISA Amendments Act purports to permit the intelligence and security agencies of the United States government to eavesdrop on the electronic communications routinely carried on among citizens of this Republic and those residing overseas.

It’s not the eavesdropping that’s the most egregious violation of the Constitution and the Bill of Rights (such activities are conducted by law enforcement all the time for legitimate purposes), but it’s the indefensible fact that the federally empowered snoops conduct this surveillance without a probable cause warrant so long as one of the parties being monitored is located outside the territory of the United States. The justification being that if an American is talking, texting, or e-mailing a foreigner then something might be said that would aid in the acquisition of “foreign intelligence information.”

This policy is such a shameful disregard for our long history of individual-based human and civil rights (including the freedom from unwarranted searches and seizures) that it shocks the conscience even when the source is considered.

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After NDAA Amendment, Indefinite Detention Still the Law

Originally published at The New American

In a shameful display of disregard for the Constitution and for liberty, on Friday, the House of Representatives voted to perpetuate the president’s power to indefinitely detain American citizens.

By a vote of 238-182, members of Congress rejected the amendment offered by Representatives Adam Smith (D-Washington) and Justin Amash (R-Michigan) (left and right, respectively in photo montage at left) that would have repealed the indefinite detention provision passed overwhelmingly last year as part of the National Defense Authorization Act (NDAA) of 2012.

The Fiscal Year 2013 NDAA retains the indefinite detention provisions, as well as the section permitting prisoners to be transferred from civilian jurisdiction to the custody of the military.

“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate.

Debate on the Smith-Amash Amendment, as well as about 140 others began in the early, pre-dawn hours Friday morning.

In his impassioned speech supporting his amendment, Representative Smith reminded his colleagues that the NDAA granted to the president “extraordinary” powers and divested the American people of key civil liberties, as well as divesting civilian courts of their constitutional jurisdiction.

Smith pointed out that there was no need to transfer suspects into military custody as “hundreds” of terrorists have been tried in federal courts since the attacks of September 11, 2001.

Congressmen — Republicans and Democrats — were not persuaded and they voted against Smith-Amash.

Another amendment offered by Representatives Louie Gohmert (R-Texas), Jeff Landry (R-Louisiana), and Scott Rigell (R-Virginia) passed by a vote of 243-173. The Gohmert Amendment (House Amendment 1126) states that the NDAA will not “deny the writ of habeas corpus or deny any Constitutional rights for persons detained in the United States under the AUMF who are entitled to such rights.”

Again, this amendment is yet another indefensible use of vague language that would make it vulnerable to challenge in any court in any state in the Union, but somehow adds to its appeal among the Republicans in Congress.

Smith and those supporting his amendment claimed that Gohmert’s Amendment was unnecessary as it does nothing of any value other than restate what is already settled law: viz., that Americans have the right to a ask for a writ of habeas corpus.

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NDAA 2013 Passes out of Committee; Indefinite Detention Provisions Remain Intact

As opposition to the National Defense Authorization Act of 2012 continues to grow, along comes the 2013 version, which promises to perpetuate the attack on liberty begun by its predecessor.

In the pre-dawn hours on Thursday, by a vote of 56-5, the House Armed Services Committee passed a slate of changes to the NDAA for the next fiscal year. Committee Chairman Howard P. “Buck” McKeon (R-Calif.) released a statement announcing the goals of the bill’s latest mark-up:

I am proud of the bi-partisan way the Committee has worked together to build this bill. It rebuilds a force strained by ten years of war while restoring both fiscal and strategic sanity to the defense budget. It keeps faith with our troops and their families while keeping America ready to face the threats of the future.

In his statement, Representative McKeon declares that “every American must have his day in court.” Further, he “reaffirms the fundamental right to Habeas Corpus of any person detained in the United States pursuant to the 2001 Authorization for the Use of Military Force.”

Section 1033 of the mark-up version passed by the committee is offered as the codification of that protection. Here is the current text of that updated provision:

This section would state that nothing in the Authorization for Use of Military Force (Public Law 107-40) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force (Public Law 107-40).

The double-speak contained in that paragraph is impressive even for a Capitol Hill lawyer.

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Oklahoma Legislator Introduces NDAA Nullifying Resolution

Another brave state legislator has joined the resistance to federal tyranny by defending the constitutional right of states to govern themselves.
 On February 3,  Oklahoma Rep. Charles Key (R-Oklahoma City, left) offered a bill that would officially request that the Congress of the United States repeal Sections 1021 and 1022 of the National Defense Authorization Act (NDAA). Furthermore, the legal effect of those two sections would be void in Oklahoma.

In a press release accompanying the introduction of the bill, Rep. Key explained his motivation for putting forth the proposal:

President Barack Obama has said he would not hold citizens indefinitely; it is deplorable that he would sign into law legislation that contains clauses that would authorize him to do just that. Oklahomans have taken notice of this repugnant new law and as state lawmakers it is our duty to apply pressure to Congress and the president to undo this debacle.

This commendable attitude echoes that of another state lawmaker, Brian Nieves of Missouri, whoexplained to The New American his reason for sponsoring similar legislation in the Show Me State:

It is time for the members of the State Legislatures of this great Republic to stand up and assert the proper relationship between the several states and the federal government. For far too long I’ve heard state legislators say, “We can’t do that — the feds won’t let us,” when instead, it should be members of our U.S. Congress saying, “We can’t do that — the states won’t let us!”

The preamble to the 15-page concurrent resolution lays out an appropriate affront and a laudable tone for the Sooner lawmaker’s determination to nullify illegal federal encroachment into the sovereign territory of the states. The proposal declares that

the National Defense Authorization Act for Fiscal Year 2012 is unconstitutional; directing Oklahoma Congressional Delegation to commence efforts to repeal certain sections of the act; expressing belief that the unconstitutional sections of the act are not enforceable within the state and prohibiting state officers from enforcing them; and directing distribution.

From there, the text of the bill lays out a well-reasoned response to the power afforded to the President by the NDAA to deploy the U.S. military to apprehend and indefinitely detain American citizens on mere suspicion of posing a threat to the security of the homeland.

For example, Rep. Key’s resolution plainly and without reservation appeals to the Preamble to the U.S. Constitution, the Bill of Rights, and the Constitution of the State of Oklahoma for support of his defense of state sovereignty:

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