Thursday, September 27, 2012

Indefinite Detention, The NDAA, and You

Regular readers of this blog know that it is entitled "Paying for Protection" because it focuses on the ways that we as Americans give up our rights and freedoms to the government in exchange for promised protection against all sorts of potential ills.  In no case is this more evident than in the 2012 National Defense Authorization Act, which allows indefinite detention without charges without trial of persons who are accused of acting against the U.S. government.

The Indefinite Detention Provisions of the defense spending bill passed by Congress last year and signed by President Obama on December 31, 2011, state that the U.S. government has the right to detain  "a person who was 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 hostilities in aid of such enemy forces."  The act does not define what is meant by "associated forces" or "directly supported." 

Although the Obama Administration stated that the bill would never be used against American citizens, even his most liberal allies concede that the president has vigorously defended this law since its passage.  Almost immediately after it was passed, a group of journalists brought suit against this law claiming that because of their work in getting interviews with terrorists they could be subject to indefinite detention without trial.  Judge Forrest agreed and issued a temporary injunction against enforcement of the indefinite detention provisions in May of 2012.  In August, the plaintiffs and the government went back to court to argue their case again, and on September 13th the judge issued a permanent injunction on the grounds that the indefinite detention provisions violate the U.S. Constitution.  However, the Administration that promised to never enforce these provisions declared them necessary to national security and persuaded a different judge to lift Judge Forrest's ban on indefinite detention.  That means that as of the date of this writing, the government has the power to arrest and detain, indefinitely and without trial, any American for pretty much any reason.  A three-judge panel is supposed to begin a review of section 1021 tomorrow (September 28th).

Most disturbing, however, are some of the facts of the law that the suit in front of Judge Forrest revealed.  First, a person can be detained by "unwittingly" supporting belligerent forces, such as innocently sending money to a friend who is on a terror watchlist.  Attending a party or a fundraiser for a group that ends up on the terror watchlist can lead to a black van arresting you and taking you away, as can attending a protest or a rally.  The government attorneys refused to assure Judge Forrest that the journalists performing their normal duties would be safe from detention.

Since word has begun to spread of the dangers of indefinite detention, local governments have gotten involved.  At least nine states have passed "anti-kidnapping laws" to protect their citizens against indefinite detention without trial by the federal government.  But enforcement of these laws would be difficult, since the military will be handling these detainees on military bases.

The very concept of indefinite detention flies in the face of everything that we as Americans believe and every protection that has been afforded to us by our Constitution.   The Fifth and Sixth Amendments to the Bill of Rights guarantee Americans due process, and those guarantees are being destroyed by sections 1021 and 1022 of the NDAA.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment of 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 offence 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.

Sixth Amendment

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; 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 defense.

Although the law was supposedly passed to help the government contain al-Qaeda, Americans need to be asking themselves who it is really intended for.  Do we really believe that a government that has invited the Muslim Brotherhood to the White House but can't find time to meet with Israeli President Benjamin Netanyahu really needs indefinite detention to deal with al-Qaeda?  I think it much more likely that the real targets of indefinite detention are the rest of us in light of recent comments from Chuck Schumer and other high profile Democrats that the First Amendment is not absolute and in light of the President's remarks to the UN only yesterday that the future cannot belong to people who are disrespectful of Islam. (That would be everyone who professes a different faith than Islam, along with those who profess no faith at all, since Islam requires that everyone be a follower.)  Those facts, coupled with Homeland Security's watchlist of potential domestic terrorists, which includes people who believe in pro-life causes, ex-military, and people who quote the Constitution, should sound warning bells for our entire nation.  This law and it's potential applications have the ability to destroy the very fabric of our nation.

What can we do?  Joyce and I have written our new novel, The Chosen, about indefinite detention.  In our novel, set just three years from now, the main character is detained partially because of his support of the nation of Israel, and his wife takes his case to the Supreme Court.  But in real life we know that we cannot rely on the U.S. Supreme Court to undo the consequences of elections. If the section 1021 of the NDAA is to be stopped, we the people have to the ones to stop it.

  1. Everybody needs to get out and vote in this election.  The Obama Administration, in spite of his protests to the contrary, has been a driving force in getting section 1021 of the NDAA moved forward.  He insisted that the language be put in the bill in the first place, and his Adminstration has fought every legal challenge to it.  His assertions that he will never use it against the American people are lies--if he weren't planning to use it he wouldn't be fighting so hard for it.
  2. We need to start pressuring Congress and the Senate about this language.  All references to indefinite detention need to be removed from the 2013 National Defense Authorization Bill.  We also need to find out whether we need to pass additional legislation to repeal the 2012 provisions. 
  3. For years we have had persistent rumors of FEMA camps waiting for detainees.  The newest rumor involves a FEMA camp at Palmdale, California, that has a crematorium and reportedly not much else. We need to pressure Congress to open an investigation to determine whether these rumors are true.  If it is determined that they are true and that we have allowed the government to construct the equivalent of massive concentration camps on U.S. soil, we need to insist that all such camps be destroyed.  Such facilities are antithetical to American freedoms and should not exist.

Get informed. Get involved.  Stand up for the Constitution.  Fight for the laws of our country.  Every American deserves a trial.

Read Alexandra's new novel, The Chosen, free on Kindle October 3rd through October 8th.

Alexandra Swann is the author of No Regrets: How Homeschooling Earned me a Master's Degree at Age Sixteen and several other books. Her newest novel, The Chosen, about one small group of Americans' fight to restore the Constitution and end indefinite detentions without trial, will be available on Kindle and in paperback October 1st. For more information, visit her website at

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