Revealing the failure of the coordinated campaign by defenders of the National Defense Authorization Act 2011 (NDAA) to lie about its applicability to U.S. citizens, protesters at the White House continued to press the issue on Jan. 7 (video below,) with more protests planned for today and throughout the month (example this Friday in Bloomington, IN.) In addition a major action is planned for February 3. Please share information on your local actions.
During floor debate over the NDAA's provisions to allow the Executive Branch to indefinitely detain U.S. citizens accused of links to terrorism without charge or trial, Rep. Justin Amash said the legislation was “carefully crafted to mislead the public.”
California activists are reported to be launching state house campaign to pass a recall law to apply to Feinstein and Boxer who both voted for the NDAA. States which presently have federal recall laws are Arizona, Colorado, Louisiana, Michigan, Montana, Nevada, North Dakota, Oregon, Washington, and Wisconsin. Efforts are already being launched to recall senators in Montana and Arizona.
Dozens of Occupy Wall Street protesters were arrested over NDAA, within view of the Oval Office, earlier this month.
Federal recall laws remain relatively untested in the courts, with the reasoning behind the two instances in which they have been disallowed, in Idaho and New in New Jersey, considered weak and vulnerable. Proponents of such laws point out that the Idaho decision was based on the idea that a recall law constituted a change in the "qualifications" for office, such as age and residency, which the Constitution prohibits. And the NJ decision, by a state court, relied on the argument that the Constitution prohibits the length of a term of office from being changed, something which a recall does not do.
A faculty paper of the College of William and Mary Law School on federal recall argues:
Properly conceived and exercised, the recall would serve not as a referendum for single issues like abortion or a balanced budget, but rather would provide the voters with a means of removing a senator who has perpetrated an extraordinary breach of the public trust...
NDAA Primer, Pertinent Sections with Commentary
(b) COVERED PERSONS.—A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forcesthat 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.COMMENT:
“Substantial support” of an “associated force” may imply
citizens engaged in innocuous, First Amendment activities.
Direct support of such hostilities in aid of enemy forces
may be construed as free speech opposition to U.S. government
policies, aid to civilians, or acts of civil disobedience.
Rep. Tom McClintock opposed the bill on the House floor saying it:
"specifically affirms that the President has the authority to deny due process to any American it charges with “substantially supporting al Qaeda, the Taliban or any ‘associated forces’” — whatever that means.
Would “substantial support” of an “associated force,” mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don’t know."
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a
person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111– 84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
"Existing law" is Fourth Circuit in Jose Padilla.
Section 1022 "(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS":
(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.COMMENT:
Even if US citizens are not "required" to be detained by the military in terrorism cases, it is still "allowed."