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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...

Final Roll Call Votes, "YES" is in favor of NDAA military detention of U.S. citizens.
SENATE: YEAs ---86
HOUSE: AYES 283 --

NDAA Primer, Pertinent Sections with Commentary

Section 1021

(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.
COMMENT:
"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."


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Comment Preferences

  •  Uh, State Law notwithstanding, you cannot (5+ / 0-)

    recall a member of Congress. . .

    "TEABAGGER=Totally Enraged About Blacks And Gays Getting Equal Rights."

    by second gen on Wed Jan 11, 2012 at 11:56:33 AM PST

    •  It's no use arguing with this diarist about it. (5+ / 0-)

      He continues to insist that it's somehow permitted under the Tenth Amendment, ignoring both (a) the massive can of worms that opens up from a representational standpoint—a can of worms that would make the 17th Amendment all but toothless—and (b) the substantial Constitutional arguments that Congress, not the states, has final authority over all Congressional elections, merely delegates regulation to the states as a matter of convenience, and can overrule state Congressional election laws as it sees fit.

      "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

      by JamesGG on Wed Jan 11, 2012 at 12:13:55 PM PST

      [ Parent ]

  •  Something to consider: (4+ / 0-)

    we're going into an election where we are likely to lose control of the Senate.  If all this anger about the NDAA could be harnessed to prevent that from happening by voting out all the Republicans who fought for stronger language, replacing bad Democrats with new Democrats who can do better, and preventing new Republicans who want to do worse, then we'd be on to something.  

    The federal recall thing isn't going anywhere.  Put your chips where you can make a real difference.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Wed Jan 11, 2012 at 12:22:20 PM PST

    •  Good points. Answers... (2+ / 0-)
      Recommended by:
      joe shikspack, Ecclesiastaverbs

      As the diary states, recall laws are relatively untested and could succeed in states which already have them.  But recall activists openly acknowledge that the real value of these campaign is as a vehicle for shadowing the treasonous congressmen for what they have done, especially those up for re-election.  This makes it easier for challengers, be they primary or general election, to mount a real campaign.  

      The bottom line is because of the major broadcast media blackout, citizens understand they have a lot of hard grassroots education to do on NDAA, which is larger than the scope of a primary campaign, but there is no sense in doing an education campaign with no teeth to it, like recall has.  

      It is clear that the Congress is now in the hands of a dangerous rabble intent on passing the power to put their constituents in military detention going solely on the word of Executive Branch bureaucrats.  

      It is possible the Founders did not think we needed recall laws because memories of kingly repression were so fresh it would have been political suicide to tell the colonists they had no rights, and it would not have been attempted.  Now the government has been emboldened.  We need recall laws, and it's time for another round of court challenges, in a vastly different political climate.

      This does not preclude replacing the Democrats who voted for NDAA in primaries with better Democrats, and running against those Republicans who did.  It works hand-in-hand.

  •  Do the recall activists (2+ / 0-)
    Recommended by:
    second gen, SwedishJewfish

    looking to recall Diane Feinstein have any opinion of her legislation to undo the indefinite detention language? Perhaps they have already expressed support for her efforts as they seek to unseat her?

    There is no belief, however foolish, that will not gather its faithful adherents who will defend it to the death. -- Isaac Asimov

    by tytalus on Wed Jan 11, 2012 at 01:00:33 PM PST

  •  Protesting NDAA doesn't mean squat (0+ / 0-)
    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.

    You can repeal NDAA tomorrow and the ability to detain americans for the length of hostilities would still exist.

    I don't understand why this concept is so hard for people to grasp.  The diarist even posted it in his diary but completely ignores it.

    Right man, right job and right time

    by Ianb007 on Wed Jan 11, 2012 at 08:11:17 PM PST

    •  Indefinite detention... (0+ / 0-)

      means just that. Has nothing to do with "the length of hostilities".

      •  Listen there is no such term in the bill... (0+ / 0-)

        as indefinite detention

        The bill says:

        (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

        Key words here are  "end of hostilities" AND  "authorized by the Authorization for Use of Military"

        The NDAA is not the bill we should be protesting here.  
        There was a time this community prided itself on being "reality based"  Now any type of Rush Limbaugh type red meat for the left is treated as gospel.

        smh

        Right man, right job and right time

        by Ianb007 on Thu Jan 12, 2012 at 11:28:48 AM PST

        [ Parent ]

    •  Here's a good summation... (0+ / 0-)

      aspects of the measure are controversial and there have been various interpretations. Here is one summation:

      The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled "Counter-Terrorism." In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority. Although the White House[10] and Senate sponsors[11] maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress "affirms" this authority and makes specific provisions as to the exercise of that authority.[12][13] The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU) and some media sources which are concerned about the scope of the President's authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces.[14][15][16][17][18]

      http://en.wikipedia.org/...

      You also have to consider that Obama felt compelled to write a disclaimer regarding American citizens. Why is that? Because he's a lawyer and he understands that language can be interpreted differently by different folks. If the legislation needed a disclaimer, better to ditch. Recall.

    •  No because with NDAA there is no way to (0+ / 0-)

      challenge such detentions.  They can be done on secret evidence, in secret.  Previously the Exec would have to rely on Fourth Circuit Padilla and explain itself when brought to SCOTUS.  See how nifty NDAA is?

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