Today, Congress had a chance to fix a mess of their own making - and they blew it.
Instead of prohibiting indefinite detention of persons arrested on U.S. soil who have been merely accused of “substantially supporting” al Qaeda, the Taliban, or “associated forces,” Congress actually made things worse.
In a moment, I’ll ask that you contact Congress.
But first, allow me to briefly explain what happened.
As you should be aware, last year, Senator Carl Levin authored a provision, Section 1021 and 1022, into the FY 2012 National Defense Authorization Act that allows the President to indefinitely detain American citizens and foreigners who are arrested on U.S. soil on the mere accusation of supporting terrorism.
In a signing statement, the President assured Americans that he wouldn’t use this power.
With all due respect to the President, his word is not much to go on and certainly not enough to relieve my concerns.
That brings us to today.
Early this morning, Congress voted on the Smith(WA)/Amash/Berman/Garamendi/Duncan(TN)/Johnson(GA)/Gosar/Hirono/Paul/Jackson Lee/Tipton/Labrador Amendment that would have prevented indefinite detention of persons detained on U.S. soil.
This was the only amendment that would have substantively addressed the problem by definitively stating the President does not have the authority to indefinitely detain persons arrested on U.S. soil in military custody.
Unfortunately, it failed by a vote of 182-238.
There are several reasons for this.
For one, Congress was offered a smokescreen amendment that was voted on immediately after the Smith/Amash amendment was rejected.
This amendment, offered by Rep. Louie Gohmert (TX-1), was even worse than doing nothing, and it will likely exacerbate the problems and ambiguity regarding the detention of “suspected terrorists.”
The first part simply reiterates that Americans have Habeas Corpus rights.
Except no one is arguing otherwise.
In fact, the Constitution clearly states that the “Writ of Habeas Corpus shall not be suspended” unless by an act of Congress. Since Congress has not explicitly passed an act stating it is suspended, all persons in the United States have that right.
Where it has potential to make the problem worse is two-fold, as Steven Vladeck blogged at Lawfare:
“First, it introduces uncertainty regarding whether individuals arrested within the United States but out of immigration status are entitled to pursue habeas relief (never mind the countless immigration cases where such relief has historically been available—and the compelling constitutional arguments supporting that jurisprudence). Second, the 30-day provision would arguably allow the government to preclude a detainee’s access to court (or counsel) for 30 days, whereas under current law, the detainee may file the moment he is ‘in custody under or by color of the authority of the United States.’”
So, in addition to rejecting an amendment that quite clearly would protect due process and the rule of law, Congress actually managed to make the situation much worse by passing the Gohmert amendment by a vote of 243-173.
Another reason for the Smith/Amash amendment failing is the outrageous and hyperbolic accusations lobbed at it from Wall Street Journal op-ed pages and even by alleged “Tea Party” members of Congress.
One such attack came from Rep. Tom Rooney (FL-16). Rooney issued a press release Thursday claiming the Smith/Amash amendment “coddled foreign enemy combatants” and would provide incentive for attacks on U.S. soil.
Excuse me, but since when did suicide terrorists suddenly begin to contemplate whether they’ll end up in a military tribunal or Article III court before carrying out their dastardly deeds?
In reality, if a terrorist were able to carry out an attack on U.S. soil, the government should look inward – at the failure of the intelligence community and their own national security state in this post-9/11 world.
Nevertheless, these are the sorts of absurd, illogical statements that were used to convince your member of Congress to vote against the only amendment that would have prevented the government from indefinitely detaining you.
By failing to adopt the Smith/Amash amendment, the government still has the authority to indefinitely detain anyone the government accuses of “supporting terrorism.”
And remember, not too long ago, it was C4L members who were listed in a Missouri Fusion Center report, later referred to as the MIAC report, as domestic extremists to be watched.
And it wasn’t just C4L members on that list, but people displaying third party logos and bumper stickers and supporters of specific politicians.
In the past, everyone from gun owners, to pro-lifers, to tea partiers, were labeled “terrorists” by their political opponents.
This is why it’s of the utmost importance that the indefinite detention of persons by the military be prohibited.
Perhaps this President won’t use such authority, but what about the next? And the one after that?
Click here to find out who voted against the Smith/Amash amendment.
And click here to see who voted for the final bill.
If your representative voted against the amendment and/or for final passage of this year's NDAA, I need you to contact them immediately and demand they change their misguided views and stop allowing the military to arrest and detain innocent citizens.
Let your representative know you’ve seen through the smokescreen that was the Gohmert amendment, and you aren’t fooled for a second.
In addition, make sure your representative realizes that Section 1021 of the NDAA was declared unconstitutional this week in a U.S. District Court, and that a temporary stay on enforcement of that measure has been granted.
Finally, make it clear you'll be telling your fellow constituents that your representative abandoned them to a growing police state.
Congress created this unconstitutional mess, and it’s Congress that will have to fix it.
After you've contacted your representative, get in touch with your senators to demand they vote against the NDAA as long as it contains these indefinite detention provisions.
And stay tuned to CampaignforLiberty.org, as we look ahead to fighting this bill in the Senate next week and doing our best to prevent the government from being able to indefinitely detain innocent Americans.
In Liberty,
Tim Shoemaker
Director of Legislation
P.S. Earlier today, the U.S House voted down an amendment that would have prohibited the military from being able to indefinitely detain you. It later voted for final passage of this year's NDAA.
If your representative voted against the Smith/Amash amendment or voted for final passage, contact them immediately to demand they change their misguided view and stop allowing the military to arrest and detain Americans!
Then contact your senators to urge them to vote against the NDAA as long as it contains these provisions.
As the fight over the FY 2013 NDAA heads to the Senate, please chip in $10 or $25, or whatever you can afford, so C4L can continue leading the fight to prevent the military from detaining you for as long as it wants.
