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may need to say that any prior authorization, including within the 2001 AUMF, whether express or implied, is hereby withdrawn, or state that Congress now clarifies that it did not intend such authorization in 2001.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.
Founder of Oath Keepers and Yale Law School graduate
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