What Congress Must Do to Fix the Damage of NDAA, and Deny the U.S. Government the Power to Wage War on Americans
There are members of Congress now moving to repeal Section 1021 of the NDAA of 2012. While a good start, simple repeal of the NDAA is not enough to undo the damage that has been done to our liberty, as I will explain below. Congress needs to go a step farther and clearly state, in writing, that it does not authorize the use of military force, military detention, or military trial on U.S. citizens or lawful residents. And it should go even farther and clearly prohibit any such use of the war powers on Americans. Congress needs to slam that door shut.
What Congress Must Now Do to Fix This:
Right now, the President can claim that Congress has authorized him to use war powers and the laws of war against the American people, to kill them, detain them indefinitely, or to try them for pretended offenses against the laws of war. To remove that supposed power, and stop it from being used on Americans, Congress MUST do the following:
- Repeal. Repeal Section 1021 and 1022 of the NDAA, or at least amend it to clearly state that nothing therein applies to U.S. citizens or lawful residents. Frankly, it should have been considered as a stand alone bill, so a total repeal may be best, so they can hold actual hearings on how Congress wants to handle detainees, but in either case, wipe out any application to US citizens or lawful residents.
- Deny authorization. Congress must clearly state that it does not authorize the President to use military force, military detention, or military trial against US citizens or lawful residents (and amend current laws, including the NDAA as needed to be consistent with that clear statement that Congress does not give such authorization). Congress may need to say that any prior authorization, including within the 2001 AUMF, whether express or implied, is hereby withdrawn, or state that Congress now clarifies that it did not intend such authorization in 2001. Whatever works best to make it bulletproof and not open to interpretation by any court as Congress giving authorization.
- Prohibit use of the laws of war against Americans. Clearly prohibit the use of military force, military detention, or military trial (except as to those Americans serving in the Armed forces) against any US citizen or lawful resident for any crime whatsoever, including any alleged violations of the laws of war.
- Mandate a trial for Treason, before a jury. Congress must clearly mandate that a US citizen or lawful resident who is suspected, accused, or even “determined” to be levying war against the United States, or committing any belligerent act, or to be aiding and abetting the enemy, must be indicted by a Grand Jury, pursuant to the 5th Amendment, for the crime of treason and must be tried for treason, before a jury of their peers (as required by Article III, Section 2 and by the 6th Amendment), in a civilian court, with a requirement of two witnesses to the same overt act or confession in open court before conviction, as required by Article III, Section 3.
I will explain further below why all this is necessary, but the over-arching point is that Congress must not just say it does not give authorization. It must also say a President cannot use military. It is necessary for Congress to place the President at his lowest claimed war powers when it comes to US citizens and lawful residents, by not just withdrawing Congressional authorization for the use of war powers on US citizens, but by clearly prohibiting it. Now, Obama would be forced to argue to a court that he has an independent power, as Commander in Chief, to use war powers on US citizens even in the face of a clear congressional prohibition against such use of war powers.
The reason that is necessary for Congress to go beyond merely repealing Section 1021 of the NDAA of 2012 is that the Authorization for Use of Military Force (AUMF) of 2001 has already, long before the NDAA of 2012, been interpreted by both the Executive branch and by the federal courts as authorizing use of military force and detention (and even arguably use of military tribunal) against US citizens. The key case is the 2004 Hamdi decision, where the Supreme Court interpreted the 2001 AUMF as having authorized not just the use of force, but also military detention against U.S. citizens. While the Court did not directly address military trial, the case it relied upon, Ex Parte Quirin (1942) involved an American citizen being tried by military tribunal, and when the Hamdi Court ruled that the US government can designate one of its own citizens as an unlawful combatant, that opened the door to the full spectrum of military power under the laws of war to be used against Americans. In wartime, the President, as Commander in Chief, can do the following to an enemy:
THE POWERS OF WAR, Include the Power to:
- Kill. Use of Military force. An enemy in wartime can be shot on sight, bombed, killed by missile, sniper bullet, etc. And that enemy does not even have to be bearing arms. The radio operator and mail clerk is as vulnerable to being killed as is the infantryman. All are military assets and fair game.
- Capture. Use of Military detention
- Trial by military commission or tribunal for violation of the laws of war. Among the offenses against the law of war are: Not wearing a uniform or an insignia recognizable at a distance; not serving in a recognizable chain of command; not bearing arms openly. These “violations” have obvious problems when applied to US citizens here in the U.S. – imagine an American with a concealed carry permit being charged with violation of the laws of war for not bearing arms openly. It is an absurdity that is possible when the laws of war are applied to Americans. Though the Hamdi court did not have to rule about the lawfulness of such a trial, remember that the Ex Parte Quirin case from 1942 that serves as the basis for all of this involved a military tribunal being used against a US citizen.
The dangerous error of Supreme Court, first in the Quirin case, and again in the Hamdi case, was in finding that such war powers can be used by the US government against its own people. That is spectacularly in error.
Under the Constitution, any American citizen or lawful resident accused of waging war against the United States or aiding the enemy MUST be tried for treason before life or liberty can be taken from them, as Justice Scalia pointed out in his dissent in Hamdi.
U.S. Constitution, Article III, Section 2, Clause 3, states:
“The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.”
the U.S. Constitution, Article III, Section 3 states:
“Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”
The U.S. Constitution, Article III, Section 2, Clause 3, and Article III, Section 3 together clearly and plainly set forth what manner of trial must be used against a United States Citizen or lawful resident who is alleged to have waged war against the United States or to have aided the enemy in wartime – requiring a trial by a jury of their peers, in an Article III, civilian court, for the crime of Treason, with the extra evidentiary burden of two witnesses to the same overt act, or confession in open court. Nothing could be more plain and obvious.
And yet, the federal courts have willfully ignored the Treason Clause, and also have willfully ignored the 4th, 5th, and 6th Amendments, pretending that the law of war can be used to circumvent all of those plain commands.
And even before the NDAA of 2012, two presidents have used war powers against US citizens. The Bush administration detained two US citizens in military detention, Yasir Hamdi, and Jose Padilla. Obama has begun to kill US citizens he has determined are unlawful belligerents). So, the first two war powers, the power to kill, and the power to capture and detain have already been used by presidents and the US military against Americans. And all based on the 2001 AUMF (or on a claim that the President can use such powers even without congressional authorization).
And that is why the boilerplate language in the NDAA Section 1021 that nothing herein shall be construed to expand the powers of the President does nothing – the Court has already interpreted the 2001 AUMF as authorizing the President to use military force and detention against US citizens suspected of being unlawful belligerents.
Likewise, the boilerplate that nothing herein shall be construed to change the current law and authorities regarding detention of US citizens also does nothing to stop detention, because, again, the 2001 AUMF had already been interpreted as allowing for military detention of US citizens, with the Supreme Court, in Hamdi, also erroneously ruling that nothing in our Constitution prevents the US government from designating one of its own citizens as an unlawful combatant (same as an unlawful belligerent).
So, what did Congress do in the NDAA of 2012?
1. Congress affirmed that yes, the Executive branch and the federal courts were correct to infer that the 2001 AUMF authorized not just military force, but also detention, and even trial. Now Congress has made it very clear, in writing, that this was their intent back in 2001. Where the 2001 AUMF contains no written authorization to use military detention and trial, and those powers were only inferred, the NDAA does contain that express, clear, written authorization to use:
1) Military detention without trial for the duration of the conflict
2) Trial by military commission, for supposed violations of the laws of war
3) Rendition. Turning “covered persons” over to a foreign country or to a foreign entity.
(in addition to authorizing the use of military force, which Obama has now used to assassinate American citizens)
So, by passing the NDAA of 2012, Congress not only affirmed the prior interpretations of the 2001 AUMF, but also added that what it REALLY meant to say back in 2001 was that the President could use not just military force, and not just military detention, but also military trial, and even rendition to foreigners, and the language “any person” means just that – it can be used against any person the President designates as a covered person.
And the NDAA of 2012 also expanded the written list of entities that could be targeted beyond those noted in the 2001 AUMF and for a different time (See §1023 (b)(2) “A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Emphasis added).
A Legal Fiction – “We Didn’t Say Any of This Back in 2001, But This is What We Meant Way Back Then, So We Are NOT Expanding Powers, Just Clarifying The Powers We already Granted”
Why does Congress claim that the NDAA of 2012 did not expand the powers of the President? Because it is operating under the legal fiction that all of the greatly expanded powers enumerated in writing for the first time in the NDAA of 2012 were, in fact, originally granted by Congress in the original AUMF in 2001, though nowhere mentioned in that original authorization, and thus, supposedly, the NDAA of 2012 does not affect existing law and authorities or expand the powers of the President, because Congress is pretending that it meant to grant all of these newly listed powers in the 2001 AUMF, though that original authorization makes no mention of the power to use military detention, military trial, or extraordinary rendition. This legalistic, sophistic, “time travelling” legal fiction allows Congress to greatly expand the written scope of its AUMF, including adding, for the first time, written authorization to use military detention without trial, military trial, and even extraordinary rendition to foreign countries and entities, to include against U.S. citizens and lawful residents, while telling the American people that nothing has changed. Such legalistic, retroactive, “time travel” is the height of deception.
Congress must now fix its error, and slam the door shut against any implied, interpreted, or inferred power to use the law of war on Americans. It must pass a clear prohibition against the use of such war powers on its own people. Anything less is just not good enough in the current political and legal environment, where a sitting President is now killing American citizens from his secret snuff list, based on secrete evidence.
Stewart Rhodes
Founder of Oath Keepers and Yale Law School graduate
Kalispell, Montana
Please donate and support Oath Keepers mission, every little bit helps!
January 19th, 2012 at 9:59 pm
Just a suggestion, but since these pukes are waging war against their bosses; the American people, and the Constitution, why not arrest THEM and charge THEM with Treason?? Surely there are a few federal agents out there who have kept their oath and have the cojones to act accordingly? Or is it safe to say that there is no judge left in America who hasn’t been corrupted? The Constitution was written so the average American with a basic education can understand it, so I don’t see why it would be so hard for men of above average intelligence and higher education to apply it in their offices.
If our state and (especially) federal government are so far gone that none can be trusted to act according to the Constitution, they need to be removed, post haste, and prevented from ever being able to exercise power over Americans ever again. Most of us ‘average Joes’ are sick to death of these pogues and would love nothing better than to see this once-great nation rid of this pollution.
When any government becomes destructive of the ends for which it was created, it is the right of the people to alter or abolish it. It’s time, and it’s too late to apologize.
http://minutemanpatriot.homestead.com/civil/grievances.html
Nobody wants to see America become a two-way shooting range, but it is increasingly looking like that’s exactly what certain elites are counting on. As America inches closer to that fateful day, Congress wishes to enshrine in ‘law’ the unconstitutional power to pre-emptively remove those Americans that are likely to lead any kinetic effort to hold accountable those cretins that think they can undo the very thing that made America great. Yeah, they may choose to come after me, or after Mr. Rhodes, or you, or your neighbor. They might even be able to go after a certain percentage of us; say 1%. But they can’t go after EVERYONE and put them into concentration camps, so they’re hoping that – if push comes to shove – cutting the head (and the noisy rattle) off the rattlesnake will keep the rest from rising up. They would be wrong. Undoing the thing that made America the envy of the world for 200 years is only going to increase the size of the resistance.
So I say: “Bring it!”
January 20th, 2012 at 1:06 pm
At some point (hopefully soon, or we are doomed) those who are ignoring, or by other means circumventing and breaking their Oath to the Constitution, or willfully superseding the Constitution, must be charged and brought to trial. If there is never a penalty for illegal or Un-Constitutional actions, what can prevent these usurpations of power? What criminal mind can take seriously the Constitution or their Oath if there is no penalty of any kind for their actions?
At what point will the American people say no more? When will it become obvious to enough Americans that their cherished Creator given Rights are being trampled on by the Powers That Be?
Power corrupts, and absolute power corrupts absolutely, is an old saying. It is true. The Congesscritters and the Lackeys to the Power Elite we call the Administrative and Judicial branches of Government make a mockery of the American system of Government and laugh at us while they are doing so.
Shorty Dawkins
January 21st, 2012 at 3:04 pm
It is unlikely any significant changes will occur. Historically speaking, this is the way
of things. I wish it were not. They may make some ’symbolic’ gestures. Something to lull
the sheep back to sleep. Nothing more.
Human nature is what it is. Power corrupts and… well everyone knows how that goes. We are
who we are. The only real question is are there enough of us to prevail? Time will surely
tell.
January 23rd, 2012 at 4:23 am
It didn’t take long for the White House to expand the military’s domestic terrorism provisions of the National Defense Authorization Act (NDAA). The DHS and Justice Department presented to the President the Strategic Implementation Plan for Local, State, Tribal, Federal and International police partners to prevent violent extremism in the United States. To enable the Plan, DHS envisions local information gathering solutions (Fusion Spy Centers) grants, curriculum and education. Congressional legislation, The American Jobs Act, will provide $5 billion in funding for additional police. The Nationwide Suspicious Activity Reporting Initiative (INS) will gather computer generated reports and the FBI, Joint Terrorism Task Force, will assure that the information is shared with all dometic and international police departments. An agency can simply identify and label an individual as an extremist and their on the domestic terrorist list. The police or military can then imprison you indefinitely. Your basic Constitutional rights to Habeas Corpus, Due Process and a Speedy Trial guaranteed under the Fifth and Sixth Amendments will be denied. This is America’s version of State Security. The similarities to Russia’s Gulag Archipelago are frightening. The President and Congressional representatives are turning the United States into a police state. If the American people value the principles of “life, liberty and the pursuit of happiness”, we have to work to get the politically elite out of power. While we still have the right, vote against all Federal incumbents that enabled the Military/Police State legislation. Vote against any Local, State or Federal candidate that favors the expansion and continuance of a Police State
January 24th, 2012 at 5:56 pm
LA Military Exercises
http://www.kfiam640.com/pages/NEWS.html?article=9653697
January 25th, 2012 at 3:03 pm
The Nationwide NDAA 2012 Congressional Protest is Feb. 3rd. Please spread the word!
http://www.facebook.com/events/335643799778967/
January 25th, 2012 at 3:05 pm
We ain’t seen nothing yet! The Enemy Expatriation Act is more remarkable then NDAA 2012.
January 25th, 2012 at 7:02 pm
While I can not disagree with the above comments, I believe that the time has come to go to the next step, as words did not even capture the attention of Congress and never will under this current period. Unfortunately, the time for more words is wasted. Congress is not being held accountable for their or their lack of actions., on behalf of protecting “We the People”. We have reached a cross road, where we, as a people, have to take action to save both ourselves and the Republic.
Unfortunately, all current so called Freedom Organizations continue to run at the mouth and do nothing. This includes the NRA and the Oath Keepers and like Organizations. If only, we could get rid of the lawyers and replace them with actual leaders, within these organization, possibly we could rally and organize, develop and create a front line Resistance Movement, with actual teeth. We never hear of any FBI, DEA, NSA, CIA agents and agents of the other alphabet governmental agencies or Senior Military Officers taking a position one way or another. I am all for waiting for the next elections, but, in the interim, people appear to forget the Boy Scouts’ saying of “Being Prepared”. If we do not take the initiative and if the elections do not solve, the current debacle, we will be behind the eight ball and we will get our butt handed to us. On the other hand, if we are prepared, the outcome could be totally different.
As I read the Posts, I applaud the courage of many individuals, who profess their possible future actions, to recapture our Republic but, without the presence of operational organization and discipline, individuals will not be taken seriously. On the other hand, if we were to present an organized front, fully equipped , to carry out our operational goals, then the powers, at be, cannot ignore this, only at their peril. As we stand presently and keep running at the mouth, they can continue carrying out their agenda, with no fear of reprisals.Andre
January 25th, 2012 at 7:08 pm
This does not really matter. Even if it is repealed, it is always 3 steps forward, one step back.
If this one is repealed, does it mean our constitution has been restored?
Of course not.
January 25th, 2012 at 9:51 pm
Maybe it is just me, but one of above comments drew my attention.
First off, would we even be having this conversation, if it was not for an Attorney, right?
Everything on this site is to educate people, some are still sleeping. I have seen no sign that input is not allowed, have you?
So it seems to me, the only reason you have a “specific problem”, is because you have been sitting around, waiting for someone to do it for you!!!!