Military Detention law blocked by New York Judge for now anyway

[tombogan03884]

Some would be better off with Saran wrap.
And go "full Face".

[McGyver]

Some would be better off with Saran wrap.
And go "full Face".

Well then Tom, why do even AP reporters say it? This is from Associated Press reporter Donna Cassita:

"Insisting they are stronger on defense than the president, Republicans crafted a bill that calls for construction of a missile defense site on the East Coast that the military opposes, bars reductions in the nation's nuclear arsenal and reaffirms the indefinite detention without trial of suspected terrorists, even U.S. citizens captured on American soil."

http://news.yahoo.com/house-oks-642-billion-defense-bill-165125053.html

[BAC]

Well then Tom, why do even AP reporters say it? This is from Associated Press reporter Donna Cassita:

"Insisting they are stronger on defense than the president, Republicans crafted a bill that calls for construction of a missile defense site on the East Coast that the military opposes, bars reductions in the nation's nuclear arsenal and reaffirms the indefinite detention without trial of suspected terrorists, even U.S. citizens captured on American soil."

http://news.yahoo.com/house-oks-642-billion-defense-bill-165125053.html

Subtitle D—Counterterrorism
9 SEC. 1031. FINDINGS ON DETENTION PURSUANT TO THE
10 AUTHORIZATION FOR USE OF MILITARY
11 FORCE ENACTED IN 2001.
12 Congress finds the following:
13 (1) In 2001, Congress passed, and the Presi
14 dent signed, the Authorization for Use of Military
15 Force (Public Law 107–40; 50 U.S.C. 1541 note)
16 (hereinafter referred to as the ‘‘AUMF’’), which au
17 thorized the President to ‘‘use all necessary and ap
18 propriate force’’ against those responsible for the at
19 tacks of September 11, 2001, and those who har
20 bored them ‘‘in order to prevent any future acts of
21 international terrorism against the United States’’.
22 (2) In 2004, the Supreme Court held in Hamdi
23 v. Rumsfeld that the AUMF authorized the Presi
24 dent to detain individuals, including a United States
25 citizen captured in Afghanistan and later detained in

1 the United States, legitimately determined to be
2 ‘‘engaged in armed conflict against the United
3 States’’ until the end of hostilities, noting that
4 ‘‘[W]e understand Congress’ grant of authority for
5 the use of ‘necessary and appropriate force’ to in
6 clude the authority to detain for the duration of the
7 relevant conflict, and our understanding is based on
8 longstanding law-of-war principles’’.
9 (3) The Court reaffirmed the long-standing
10 principle of American law that a United States cit
11 izen may not be detained in the United States pur
12 suant to the AUMF without due process of law,
13 stating the following:
14 (A) ‘‘Striking the proper constitutional bal
15 ance here is of great importance to the Nation
16 during this period of ongoing combat. But it is
17 equally vital that our calculus not give short
18 shrift to the values that this country holds dear
19 or to the privilege that is American citizen
20 ship.’’.
21 (B) ‘‘It is during our most challenging and
22 uncertain moments that our Nation’s commit
23 ment to due process is most severely tested; and
24 it is in those times that we must preserve our

1 commitment at home to the principles for which
2 we fight abroad.’’.
3 (C) ‘‘[A] state of war is not a blank check
4 for the President when it comes to the rights of
5 the Nation’s citizens.’’.
6 (D) ‘‘[A]bsent suspension, the writ of ha
7 beas corpus remains available to every indi
8 vidual detained within the United States.’’.
9 (E) ‘‘All agree suspension of the writ has
10 not occurred here.’’.
11 (F) ‘‘[A]n enemy combatant must receive
12 notice of the factual basis for his classification,
13 and a fair opportunity to rebut the Govern
14 ment’s factual assertions before a neutral deci
15 sionmaker.’’.
16 (G) ‘‘Whatever power the United States
17 Constitution envisions for the Executive in its
18 exchanges with other nations or with enemy or
19 ganizations in times of conflict, it most as
20 suredly envisions a role for all three branches
21 when individual liberties are at stake.’’.
22 (H) ‘‘nless Congress acts to suspend it,
23 the Great Writ of habeas corpus allows the Ju
24 dicial Branch to play a necessary role in main
25 taining this delicate balance of governance,

1 serving as an important judicial check on the
2 Executive’s discretion in the realm of deten
3 tions.’’.
4 (I) ‘‘We reaffirm today the fundamental
5 nature of a citizen’s right to be free from invol
6 untary confinement by his own government
7 without due process of law, and we weigh the
8 opposing governmental interests against the
9 curtailment of liberty that such confinement en
10 tails.’’.
11 (4) In 2008, in Boumediene v. Bush, the Su
12 preme Court also extended the constitutional right
13 to habeas corpus to the foreign detainees held pursu
14 ant to the AUMF at the United States Naval Sta
15 tion, Guantanamo Bay, Cuba.
16 (5) Chapter 47A of title 10, United States
17 Code, as originally enacted by the Military Commis
18 sions Act of 2006 (Public Law 109–366), only al
19 lows for prosecution of foreign terrorists by military
20 commission.
21 (6) In 2011, with the enactment of the Na
22 tional Defense Authorization Act for Fiscal Year
23 2012 (Public Law 112–81), Congress and the Presi
24 dent affirmed the authority of the Armed Forces of
25 the United States to detain pursuant to the AUMF

1 a person who planned, authorized, committed, or
2 aided the terrorist attacks that occurred on Sep
3 tember 11, 2001, or harbored those responsible for
4 those attacks, or a person who was a part of or sub
5 stantially supported al-Qaeda, the Taliban, or associ
6 ated forces that are engaged in hostilities against
7 the United States or its coalition partners, including
8 any person who has committed a belligerent act or
9 has directly supported such hostilities in aid of such
10 enemy forces.
11 (7) The interpretation of the detention author
12 ity provided by the AUMF under the National De
13 fense Authorization Act for Fiscal Year 2012 is the
14 same as the interpretation used by the Obama ad
15 ministration in its legal filings in Federal court and
16 is nearly identical to the interpretation used by the
17 Bush administration. This interpretation has also
18 been upheld by the United States Court of Appeals
19 for the District of Columbia Circuit.
20 ( 8 ) Such Act also requires the Secretary of De
21 fense to regularly brief Congress regarding the ap
22 plication of the detention authority provided by the
23 AUMF.
24 (9) Section 1021 of such Act states that ‘‘Noth
25 ing in this section shall be construed to affect exist-

1 ing law or authorities relating to the detention of
2 United States citizens, lawful resident aliens of the
3 United States, or any other persons who are cap
4 tured or arrested in the United States.’’.

[Solus]

The law is aimed at illegal aliens and excludes citizens and aliens legally present in the US.

I don't wonder at all that a judge would come out against the law just like they found portions of AZ's law aimed at illegal immigrants unconstitutional.

I'm also not surprised that any new media would be against this law.

We can and should worry that this law can be perverted and "law enforcement" will misuse it to harass citizens....just like has been done with the lessened requirements to obtain wiretaps for suspected terrorists under the Patriot Act and the "law enforcement" use that to wiretap houses of prostitution.  Sure, the houses were illegal in the state it was done, but the law was misused to violate the rights of citizens.

We can't toss out any law that has the potential of being misused because so many of them  do have that potential.  We need, instead, to stop "law enforcement" from doing so.  Perhaps a 20yr prison sentence for any officer and their superior violating the limits of a law.   Of course, "law enforcement" and the DAs would work to make sure no one was ever tried on those charges.  But it would be a start.  Maybe a $100,000 payment to anyone subjected to an illegal search or other activity.  But then every search would be likely to turn up something so illegal the citizen would not press charges just to avoid fighting the phone evidence.



 

[rojawe]

If so then answer why obama says he can but won't so now what and you trust obama and the 43 czars. DUH

[Sponsor]

[Solus]

If so then answer why obama says he can but won't so now what and you trust obama and the 43 czars. DUH

Obama says he can but won't what?

[rojawe]

Subject: NDAA excerpts from NDAA debate makes one proud of our public servants

Excerpts from debate on the NDAA 2013 and amendments as debated 5 18 12

Read this and weep!

My comments in Blue

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   Mr. LANDRY. Mr. Chairman, I rise as a proud member of the Tea Party. I opposed the debt ceiling. I opposed some of the CRs. I opposed our involvement in Libya. I'm a strict constructionist when it comes to the Constitution. When I joined this body, I raised my hand to God and swore to uphold the Constitution and protect it from all threats both foreign and domestic. I am a veteran.

   With this oath, my duty to protect our citizens' liberties is matched by my duty to protect their lives. [Uh no it is not!] That is exactly what the text of this bill, when combined with this amendment, does. It ensures that every American has access to our courts and ensures that they will not be indefinitely detained.

   Equally important, our amendment does not harm our Armed Forces' ability to protect this Nation. Unfortunately, some in this body choose to believe that our soil here is not a battlefield in a war on terror.

NOTE: Does anyone really believe that the United States is a battleground? Does this guy even know what he is saying? He says he is former military. Does he not realize that a battlefield is under the authority and control of the military and not the civil authority? Does he not understand that he is saying the United States is under the law of war and martial law? Just how ignorant CAN HE BE!? Does he not understand that the AUMF did not authorize a “war on terrorism”

They {Smith and Amash] want to treat the al Qaeda cell in Seattle differently or better than the al Qaeda cell in Yemen.

Either Yoder or Pompeo’s LA told me “It’s a policy issue. Do we want to give more rights to terrorist in the U.S. than they have in Afghanistan? I told him” It is not a policy issue. It is a Constitutional issue and the answer is “yes” under the Constitution it is required”.

Read the below Constitutional amendments and tell me this guy has any idea what he is talking about.

Amendment 3 - Quartering of Soldiers. Ratified 12/15/1791. Note

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

NOTE: “any house” whether owned by or occupied by a citizen or a foreign national

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

NOTE: “no person” , “any person” these terms have nothing to do with citizenship these rights pertain to all persons within the U.S. regardless of nationality.


--------------------------------------------------------------------------------

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

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 defence.

NOTE: This amendment related to “all criminal prosecution” not just those regarding citizens.

Amendment 8 - Cruel and Unusual Punishment. Ratified 12/15/1791.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

NOTE: Relates to the punishment ext., without regard to whom it is being applied, citizen or not.

Amendment 14 - Citizenship Rights. Ratified 7/9/1868. Note History
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
NOTE: Here it is even clearer that some rights are for all persons not just citizens. In this amendment both are specifically addressed which shows the intent to differentiate between the two.

   To yield to these Members to adopt their view [He is referring to Smith and Amash, it’s the Constitution’s view he is taking exception with] does nothing to protect the liberties of our citizens. {Really?]It only harms their safety. For that reason, I urge them to adopt this amendment. {The Landry amendment]

 

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

   Mr. GOHMERT. Mr. Chair, the issue here is, do you want to fix the possible problems with the Authorization for Use of Military Force back in 2001 when all of the cosponsors were not even here and possibly the NDAA? Or do you want to extend new rights that are not constitutionally required? { Referring to the rights noted in the above constitutional amendments. They aren’t constitutionally required??? What constitution is he reading?] Because those of us that have sponsored this amendment want to fix the possible problem of inappropriate detention. That's why this amendment was offered.

Page: H3078]

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   Mr. AMASH. Mr. Chair, 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 in a trial. That's the frightening thing. That's the thing that the Smith-Amash amendment fixes. It's the only amendment that does it.

   I sometimes hear this strange argument that the Constitution applies only to citizens, not persons. If you read the Fifth and 14th Amendments, it applies to persons. Those are the amendments that provide for due process. James Madison said the Constitution applies to persons. And logic dictates that the Constitution applies to persons. It applies to noncitizens.

   Is the government allowed to make noncitizens worship a State religion? Is the government allowed to take noncitizens' property without compensation? Can the government quarter troops in noncitizens' homes? Can the government conduct unreasonable searches and seizures on noncitizens' homes? Of course not. That's ridiculous. Everybody here understands that's ridiculous. No one disputes that all persons in the U.S. are covered by the Constitution.

{NOTE: This is what my Constitution says]

   HASC claims to protect persons. The House Armed Services Committee in the NDAA claims to protect persons with respect to habeas. The Gohmert amendment claims to protect persons, not citizens. And the Smith-Amash amendment protects persons. It's a phony argument.

   The Smith-Amash amendment is the only amendment that will protect citizens.

[Page: H3079]

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Mr. GRIFFITH of Virginia. Ladies and gentlemen, the problem is that folks want to always talk about the terrorists, and absolutely we all should be concerned about the terrorists. But how about the citizens of the United States who have to worry about now being arrested when they don't know what it is they've done wrong?

[NOTE:  This was one of the basis for the federal court in NY declaring sec 1021 unconstitutional, vague and ambiguous]

   In the court case that set aside 1021 just yesterday, the court points out that, they ask: Can you tell me what it means to substantially support associated forces? The representative of the government says: I'm not in a position to give specific examples. The court says: Give me one. And the gentleman, the representative of the government, says: I'm not in a position to give one specific example.

   The problem is that we have citizens who may be caught up unintentionally by this bill or by 1021. We must protect the citizens of the United States from an overreaching bill that has been ruled unconstitutional.

   And what else is interesting is the definitions aren't in 1021. The court points out in that case that in 18 U.S.C. 2339 and 2339(a) there are definitions. We need definitions. We cannot leave liberty to inference.

Page: H3080]

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   Mr. THORNBERRY

Mr. Smith's amendment changes that, and the biggest way it changes it is that it automatically gives foreigners constitutional rights that we all have thought of as belonging to Americans. So the second that a foreign terrorist, a member of al Qaeda, sets foot on U.S. soil, he is told: You have the right to remain silent. You have the right to an attorney. If you can't afford one, one will be provided to you.

[NOTE: These are not Constitutional rights the Smith amendment "gives" they come from the Constitution. These guys do not even know what the Constitution says!!!]

   The gentleman from Washington says, well, look, our criminal justice system works all the time. And it is true; we can prosecute people. But the key here, as Mr. Landry said, is not just prosecuting people after they have committed their acts or after their bomb has failed to blow up, if we're lucky. The point is to prevent those attacks. That means have you to get the information from them. And that means, if you say, You have the right to remain silent, it is going to be harder to get that information from them. And we're talking about foreigners here.

{NOTE the constitution calls them persons.}

   American citizens absolutely have the right to contest their detention. No American citizen will ever be tried in a military commission. Any American citizen has the right to contest his detention. To keep us safe, this amendment must be rejected.

{NOTE:” “No American citizen will ever be tried in a military commission.” Someone must have forgotten to tell him about Hamdi who was a U.S. citizen and went before a military commission.}

Page: H3080

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[rojawe]

On Indefinite Detention: The Tyranny Continues
Tuesday, May 22, 2012 – by Ron Paul



Ron Paul

The bad news from last week's passage of the 2013 National Defense Authorization Act is that Americans can still be arrested on US soil and detained indefinitely without trial. Some of my colleagues would like us to believe that they fixed last year's infamous Sections 1021 and 1022 of the NDAA, which codified into law the unconstitutional notion that some Americans are not subject to the protections of the Constitution. However, nothing in this year's bill or amendments to the bill restored those constitutional rights.

Supporters of the one amendment that passed on this matter were hoping no one would notice that it did absolutely nothing. The amendment essentially stated that those entitled to habeas corpus protections are hereby granted habeas corpus protections. Thanks for nothing!

As Steve Vladeck, of American University's law school, wrote of this amendment:

"[T]he Gohmert Amendment does nothing whatsoever to address the central objections.... t merely provides by statute a remedy that is already available to individuals detained within the United States; and says nothing about the circumstances in which individuals might actually be subject to military detention when arrested within the territory of United States.... Anyone within the United States who was subject to military detention before the FY2013 NDAA would be subject to it afterwards, as well..."

Actually, the amendment in question makes matters worse, as it states that anyone detained on US soil has the right to file a writ of habeas corpus "within 30 days" of arrest. In fact, persons detained on US soil already have the right to file a habeas petition immediately upon arrest!

I co-sponsored an amendment offered by Reps. Adam Smith and Justin Amash that would have repealed the unconstitutional provisions of last year's NDAA by eliminating Section 1022 on mandatory military detention and modifying Section 1021 to make it absolutely clear that no one can be apprehended on US soil and held indefinitely without trial or be held subject to a military tribunal. Our language was clear: "No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013."

The term "person" is key in our amendment, as our Founders did not make a distinction between citizens and non-citizens when determining who was entitled to Constitutional protections. As the father of the Constitution James Madison wrote, "t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection."

We should not forget that our Article III court system is a strength not a weakness. The right to face our accuser, the protections against hearsay evidence, the right to a jury trial – these are designed to protect the innocent and to determine and then punish guilt. And they have been quite successful thus far. Currently there are more than 300 individuals who have been tried and convicted of terrorism-related charges serving lengthy terms in US federal prisons. Each of the six individuals tried in US civilian courts for the 1993 bombing of the World Trade Center are serving hundreds of years in prison, for example.

Last week was discouraging and disappointing to those of us who value our Constitution. That the US government asserts the legal authority to pick up Americans within the United States and hold them indefinitely and secretly without a trial should be incredibly disturbing to all of us. Americans should check how their representative voted. Politicians should not be allowed to get away with undermining our liberties in this manner.

 

 

[tombogan03884]

Comes right down to it the Constitution doesn't amount to a piss hole in the snow.
(Southern boys may not get that)
The American people have tolerated so many infringements, and misapplications that it can now be twisted to mean whatever the Gov wants it to mean and no one will do any thing meaningful about it.
You can burn the US flag and it is classed as "Freedom of expression" (which is not protected under the Constitution, only speech and press. "Freedom of expression comes from the UN statement on human rights )
But if you fly the American Flag you can be made to remove it if your HOA or some wetback is offended.
The American people allow this crap, they don't actually deserve any rights since they have repeatedly proven themselves unworthy of them.

Re elect Obama, Give the sheep what they deserve !

[rojawe]

Selling U.S. Out ... Again

 The Second Amendment is precious to most Americans. The right to bear arms is, however, repulsive to liberals and they have tried all manner of maneuvers to take Americans guns from them. The latest tactic is to ratify a United Nations Treaty to regulate arms trade. The concept of the treaty was introduced in 2006 and was vetoed twice by the Bush Administration. The basis for the veto is the sovereignty of the United States Constitution and the unwillingness to subjugate our Constitution to any international body.