Some ads are provided by Google
They are not endorsed by The New American
| Feinstein Introduces Due Process Guarantee Act | | Print | |
| Written by Joe Wolverton, II | ||||||||||||||||
| Saturday, 17 December 2011 20:00 | ||||||||||||||||
|
The measure, entitled the Due Process Guarantee Act of 2011, is an attempt by Feinstein and her co-sponsors to prevent American citizens detained under applicable provisions of the NDAA from being denied their constitutional right to the due process of law.
The stated purpose of the act is:
To clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States and for other purposes.
As Chairman of the Senate Intelligence Committee, Feinstein wields considerable power in the upper chamber of the Congress, but even that influence was incapable of attracting enough support for an amendment to similar effect proposed on behalf of herself and Senator Rand Paul during the Senate’s debate on the original bill.
If approved, this newest measure would amend the Non-Detention Act, originally enacted in 1971. Specifically, the bill would add language to 18 U.S.C. § 4001(b). The proposed revamped paragraph would read:
An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
Currently, the affected section reads:
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.
(b)(1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended, and the applicable regulations.
Although certainly not a repeal of the NDAA, by comparing the language in the Feinstein amendment to that in the unaltered law, one discovers that the Due Process Guarantee Act serves at least as a parchment barrier to the abuses of the unconstitutional detention power given the President as authorized by the NDAA.
In a statement accompanying her introduction of the Due Process Guarantee Act, Senator Feinstein said:
The beauty of our Constitution is that it gives every citizen the basic due process right to a trial on their charges.
Experiences over the last decade prove the country is safer now than before the 9/11 attacks. Terrorists are behind bars, dangerous plots have been thwarted. The system is working.
We must clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens inside this country without trial or charge. I strongly believe that Constitutional due process requires U.S. citizens apprehended in the U.S. should never be held in indefinite detention. And that is what this new legislation would accomplish.
As has been previously reported here and elsewhere, the NDAA converts America into a war zone and turns every American into a potential suspected terrorist, complete with the full roster of rights typically afforded to terrorists — none.
With regard to the Due Process Guarantee Act, it was offered in response to a key component of the now-reconciled bill that delivers a frightening grant of immense and unconstitutional power to the executive branch.
Under applicable clauses of Section 1031, the President is afforded the absolute power to arrest and detain citizens of the United States without their being informed of any criminal charges, without a trial on the merits of those charges, and without a scintilla of the due process requirements mandated by the Constitution of the United States.
Given such an unsettling endowment of power in one man to rob Americans wholesale of their God-given (and constitutionally protected) freedom from despotism, it is illuminating to briefly review the Non-Detention Act of 1971 to see how the NDAA both supplants and subverts this earlier law.
As indicated earlier, in 1971, Congress passed the Non-Detention Act which provided that, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
It is surprising given the number of attorneys in Congress that a statute so vague and devoid of notice would be passed into law.
What, for example, is the legal definition of “an act of Congress” as intended by the authors of this law?
Moreover, the law is silent as to the answer to the question of whether or not an act of Congress may authorize the indefinite detention of an American citizen.
The decision of the Supreme Court handed down in the landmark case of Hamdi v. Rumsfeld 542 U.S. 507 (2004) shed a bit of light on the murkiness of the law.
In Hamdi, the Court held that Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant," must have the ability to challenge his enemy combatant status before an impartial judge.
However, the same decision muddied the clear waters of the Constitution by holding that the Authorization for the Use of Military Force (AUMF) satisfied the requirements of the Non-Detention Act.
Later, the issue was confused further when the Second Circuit Court of Appeals ruled in the case of Padilla v. Rumsfeld that the Non-Detention Act required “clear” intent on the part of Congress to authorize the apprehension and imprisonment of citizens branded as “enemy combatants” who are taken into custody within the territory of the United States.
Both the Supreme Court decision and that of the Second Circuit (and a related holding handed down by the Fourth Circuit) assumed that any citizen or legal permanent resident detained pursuant to the AUMF would be “associated with forces hostile to the United States.” Importantly, neither the NDAA nor the Non-Detention Act contains such a qualification.
As an article on the subject published by lawfareblog.com reports:
In short, no decision before 9/11 or since supports the notion that the NDA [Non-Detention Act] can be satisfied without a clear statement for citizens who don’t fit those exceptional facts, including citizens picked up outside the U.S. but not in the context of active military operations.
For its part, the NDAA simply requires that in order to be subject to indefinite detention, a person (citizen or legal permanent resident) be suspected by the President of having committed a “belligerent act.” Inarguably, that is a much lower and much more malleable standard than set by the Non-Detention Act.
Hence, the noble effort by Senator Feinstein to re-establish and reinforce the detention threshold of the Non-Detention Act, and, more critically, the due process liberties guaranteed by the Bill of Rights.
The Due Process Guarantee Act of 2011 is co-sponsored by Senators Patrick Leahy (D-Vt.), Mike Lee (R-Utah), Mark Udall (D-Colo.), Mark Kirk (R-Ill.), Rand Paul (R-Ky.), Chris Coons (D-Del.), Dick Durbin (D-Ill.), Kirsten Gillibrand (D-N.Y.), Bill Nelson (D-Fla.), Jeanne Shaheen (D-N.H.), Al Franken (D-Minn.), Tom Udall (D-N.M.) and Claire McCaskill (D-Mo.).
Photo of Sen. Diane Feinstein: AP Images
Trackback(0)
Comments (8)
Scott
said:
|
On December 15, just hours after the Senate had passed the compromise version of the 
TrackBack URI for this entry
Subscribe to this comment's feed |
Wait a second.. Read over the bill.. the new provision still states at the end, "unless an Act of Congress expressly authorizes such detention." The NDAA is an act of congress, so wouldn't the powers in the NDAA still be allowed? |
thisisnot1984
said:
 |
thanks but no thanks Mr Wolverton and your ilk I am not opposed to this amendment but I think that the only thing it will accomplish is to hush a lot of the hysteria that has been buzzing around the defense reauthorization act. Lately it's been hard for me to differentiate between people on the far left vs the nuttier ones on the right side of the political spectrum. Most of the discussion of this issue I've seen in the press, including the article above (though to a much lesser degree than most of what I've seen) has very little actual factual substance and a whole lot of hysterical hoopla and off-base guessing about the purposes and intentions of this bill and the suspension of habeas corpus for American citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents … YES THEY ARE, no argument here! The conspiratorial interpretations and smudging of major legal rulings that I have been seeing in the media with regard to indefinite detention provisions would be pretty comical if they were not so plainly IGNORANT and shameful! Please read what Senator Carl Levin said on the floor of the Senate on 12/15 with regards to the conference report (HR 1540): "The more difficult issue for me--and I believe it goes to the heart of the concern of the detention policy--is the kind of war we are in with al-Qaida, and that issue is when does the detention end? In other words, when are the hostilities over? In this kind of nontraditional war, we are not likely to sign a peace treaty or receive a formal surrender or even reach an agreement on a cease-fire. Under these circumstances, it is appropriate for us to provide greater procedural rights to enemy detainees than we might in a more traditional war. We have done so in this conference report. The conference report, for instance, requires periodic reviews of detainee cases in accordance with an executive order issued earlier this year to determine whether detainees pose a continuing threat or safely can be released. Under the conference report, enemy combatants who will be held in long-term military detention are told, for the first time, they will get a military judge and a military lawyer for their status determination." http://www.gpo.gov/fdsys/pkg/CREC-2011-12-15/html/CREC-2011-12-15-pt1-PgS8632.htm I suppose you "journalists" (if that's what you want to call yourselves?) think you deserve a pat on the back for having the best intentions in protecting the rights and freedoms of American citizens. Well you'd better humble yourselves because the hysteria your whipping up with misinformation is only further dividing and undermining We, the people. |
Bob Donohoo
said:
 |
Mr. "Not1984" ... You might be alright with handing over your liberties in the name of security but please, please, please don't compromise mine... You write as one not aware of the threat from within or one who does not want to believe that the kind of people who killed their own citizens by the millions around the world during the last century would ever do it here. "Not in America!!" Isn't that what you mean by the very login name you hide behind, "thisisnot1984"? I thank God for those of my "ilk" who understand that to protect their own liberties they also have to protect mine... |
Kini Cosma
said:
 |
No Questions of Police Indifference Oh my God. Oh my God. Are they having sex or are they crying because they got booted out of the kingdom? What is the difference between a Nazi cop and an American cop? http://judiciary.zoomshare.com |
Rex
said:
 |
No need for this What do we need Feinstein's stupid act for? We already have the 5th Amendment. The fact that this idiot thinks that there is a need to guarantee the people this God-given right is proof that the Constitution means nothing to her or most of the other tyrants in WDC. |
Shahid Buttar
said:
 |
It's not too late to stop the NDAA The NDAA is like the PATRIOT Act on crack, or perhaps steroids or PCP. And while the White House has announced that the president's senior advisors will not recommend a veto, it has yet to be signed and can still be stopped if the President shows the political courage to challenge Congress' terrible foolishness by issuing a veto. Raise your voice -- both online and offline -- today! http://bordc.org/ndaa This is no time to remain silent. |
itisnot184
said:
|
... *Bob Donahoo, sorry you couldn't get my point. I do care about American liberties. But when it comes to this guy http://www.csmonitor.com/USA/L...t-Al-Qaeda no question he deserves due process, but it's THIS GUY's liberties that the NDRA will affect. Are you this guy? Are you Tarek Mahanna? Well then I'm happy for you and your family that you were apprehended by a relatively open and Just government. Sorry your facing life in prison but I don't think I'll cry many tears over it. Like it or not the post-9/11 world is a lot less naive than the world you want back Mr. Donohoo. The only thing to fear is fear itself, and when good citizens are afraid to exercise their rights of free speech and peaceful assembly because of Abuse of Police Power then YES there is definitely a problem here. But the problem is NOT this law. It's the police-surveillance complex and the DISREGARD for the law by the very "peace officers" who are charged with protecting people's rights while upholding the rule of law. I'm sure we share some concerns, but my point above is that whipping up mass hysteria when people are already MAD AS HELL is dangerous and counter-productive. People need to stay grounded and stop looking for the strawman to fight. There are real issues at stake and though I agree that there are SOME legitimate criticisms of the legislation in question, I'm also finding a lot of BOLOGNA and overblown BS. THIS IS NOT 1984. |
thisisnot1984
said:
|
this is reality this guy Lawrence O'Donnell is right on: http://video.msnbc.msn.com/the...#45811988 people who don't know and/or don't respect the Constitution and the rule of law are our biggest enemies. they should NOT wear police uniforms. |
Write comment
This content has been locked. You can no longer post any comment.
