As I am short on time today to explain the true impact of NDAA in this forum, I offer this astute explanation by Mr Trautman. Also of note is the key word in the NDAA, "belligerent". There is no definition of the word, nor does it say who will make that determination.

There are currently 11 states, including Rhode Island who was the first to recognize the problem and draft legislation, that have similar bills in play. Virgina passed theirs in a veto proof super majority and awaiting the governor's signature. It has also passed the two chambers in Utah. Additionally, a number of municipalities have have passed anti-NDAA legislation.

US Congressman Dennis Ross (R-FL) confirmed to me that congress recognized there was a problem with the bill language and that an amendment had been submitted to make the intent clear. However, the amendment with 51 co-sponsors, stalled in committee and the original bill went forward. Even Senator Whitehouse acknowledged that were language problems but declined to file legislation to make the corrections.

I have 43 cosponsors on my resolution. This NDAA is recognized as constitutionally problematic across the political spectrum, from Republicans to Democrats to Progressives. We're not ALL wrong.

January 18, 2012
When Power is Unaccountable
Why the NDAA is Unconstitutional
by BRIAN J. TRAUTMAN

Each year, Congress authorizes the budget of the Department of Defense through a National Defense Authorization Act (NDAA). The NDAA of 2012, however, is unlike any previous ones. This year’s legislation contains highly controversial provisions that empower the Armed Forces to engage in civilian law enforcement and to selectively suspend due process and habeas corpus, as well as other rights guaranteed by the 5th and 6th Amendments to the U.S. Constitution, for terror suspects apprehended on U.S. soil. The final version of the bill passed the House on December 14, the Senate the following day (ironically, the 220th birthday of the Bill of Rights). It was signed into law by President Obama on New Year’s Eve. With his signature, for the first time since the Internal Security Act of 1950 and the dark days of the McCarthy era that followed, our government has codified the power of indefinite detention into law.

This pernicious law poses one of the greatest threats to civil liberties in our nation’s history. Under Section 1021 of the NDAA, foreign nationals who are alleged to have committed or merely “suspected” of sympathizing with or providing any level of support to groups the U.S. designates as terrorist organization or an affiliate or associated force may be imprisoned without charge or trial “until the end of hostilities.” The law affirms the executive branch’s authority granted under the 2001 Authorization for Use of Military Force (AUMF) and broadens the definition and scope of “covered persons.” But because the “war on terror” is a war on a tactic, not on a state, it has no parameters or timetable. Consequently, this law can be used by authorities to detain (forever) anyone the government considers a threat to national security and stability – potentially even demonstrators and protesters exercising their First Amendment rights.

We have had sad experience with this sort of thing before, notably the trial of the 7 Nazi agents landed on Long Island during WWII.

I no longer have all of the facts at my fingertips, but it was truly appalling. The FBI concealed evidence, the Supreme Court turned it's back until they were executed, the President (FDR) exerted political force on the Supreme Court, (do not place your faith in Princes, they will claim expediency while others die at a distance) etc., etc.

I guess the short was that they should have been tried in civil courts. Instead, the entire east coast was declared a "War Zone" so that they could be tried by a military tribunal. It was a sad day for American justice. I think 3 were American citizens.

I am not usually impressed by Dr. Zinn, but I suppose even a stopped clock is right twice a day.

Why should we believe anything from the lips of Dan Gordon. a man who claimed to have been in combat when he never was, a man who had his facebook and twitter pages allegedly hacked. Dan Gordon is a failure as a rep and a disgrace as a man.

The alleged felon, Rep Dan Gordon, crossed over the border from borderline psychotic to full-fledged "Looney Tune" a long time ago

Mr Gordon, what did Anchor Rising do, to deserve your presence? ?

Rep. Gordon,

Even though I disagree with the bill which you have sponsored, I will say that it is a responsible statement of the issues involved, and much better than Brian Trautman's statement above. To sum things up as best as I can in one sentence, if we take the broadest objections being made against NDAA 1021 seriously, I don't see how enemy soldiers who come into the United States even during a full-on declared war can be denied access to civilian courts to resolve various disputes they might be involved in.

Warrington,

Residents of Hawaii, at least, might have disagreed about "war zones" being something invented by the US government in 1942.

Watchman and Sammy,

Thanks for contributing the best that liberalism has to offer to this discussion.

Andrew,

Thank you for the thoughtful response, and the points in your article are well taken. Indeed the root of the problem DOES lie in the AUMF, further propagated by the Patriot Act, and now NDAA. One reason to strike at this branch rather than the root, is time. The passage of which makes repeal exceedingly difficult. An example would be Roe v. Wade. Clearly unconstitutional and agenda based legislation, but as the clock ticked, the Overton Window incrementally opened to the point where a plethora of case law and public opinion has probably rendered it incapable of being closed.

Therefore, a campaign to beat back fresh legislation attempting to solidify the afore mentioned precedents, is the most politically expedient way to raise awareness and halt the encroachment on civil liberties, in this case.

Now, the particulars in relation to your points on true enemy combatants in a declared war to access civilian courts for redress is another matter. And that is why we must turn to the Constitution where clear-cut delineations are made. Thus the necessity of Congress to make a Declaration of War after careful consideration and meaningful debate. An executive decision to 'declare war' on an ideology (terror) rather than a uniformed force is where we we stumble into the murkiness, opening the door to politically motivated interpretation. No good.

I do have an excellent, and superior to mine, resolution that was crafted specifically for Rhode Island by friends of mine; a coalition of constitutional scholars and attorneys that I can post here for reference, if you like.

Unfortunately, I received the draft after I had shopped my version, gaining the 43 co-sponsors. It wouldn't be practical, or probable, to sell a new version after the fact.

Thank you Andrew for being a catalyst in discussion on this issue.

Andrew, I am a libertarian and a Marine who is disgusted by the actions and lies that Mr. Gordon has told about his service, not to mention the fact that he has little to no contact with anyone in his district, has no job and no honor or moral compass to speak of. He is a twitter warrior who seems to think that people will believe his lies and conspiracies about his twitter and facebook being hacked by someone who writes and thinks just like him. Enjoy him now because his political career will be very short lived.

Rep.Ray Hull is my state rep.I've known him about 24 years or so.He's been a Providence police officer(Sergeant presently)for about 26 years.
Ray is about as level-headed a person as I've met.He,like I,knows the dangers of excessive authority being exercised by the government,particularly against US citizens.
I never thought the Patriot Act should have applied to US citizens except in rare circumstances after review by a FISA court.
I'm not a lawyer,but I have little faith in attempts to rein in personal liberty in the name of security.
Am I a hypocrite because I ask for enforcing existing immigration laws?No-because such laws are contemplated in the Constitution(naturalization of aliens")and are directed at persons who have no right to enter or remain here(or,of course those who do)and are not the result of a nayional panic attack in the wake of 9/11.
That could have been prevented by utilizing the laws which existed at the time.

In my example of the WWII Nazi's, I left out the politics. Declassified documents, and contemporary journals indicate that FDR wanted them dead, to please the American people. Since they had only been in the country 2 days, had not proceeded with any plan and were almost immediately turned into the FBI by one of their number, it was feared that a civilian court would not execute them. So, the Constitution was stood on its head to obtain the death sentences FDR demanded.

The jurisprudential point to be overcome was that "war zone", or not, the civil courts were still functioning. It was a usurpation of powers to try criminals in military tribunals.

BTW, if anyone has seen the old B&W movie of their capture by the FBI, it is pure propaganda. "Facts" are not allowed to get in the way of a good story. One of the spies went immediately to the FBI, who initially tossed him out. After repeated attempts, they believed him. This info was suppressed at trial, although a deal was struck where he got 20 years at hard labor rather than execution.

Could history repeat itself?

The President wanted enemy combatants dead during a war? Shocking. I'm surprised that the Third Reich didn't sue the United States government over this, to prevent Nazi soliders from being attacked in the absence of a court order.

Posted by Andrew

"The President wanted enemy combatants dead during a war? Shocking. "

Well, they were in custody. Following the logic you present, we should have shot all the POW's.

My point is that there was a legal system in place, and the President decided to subvert it. The court he had "packed" agreed to delay hearing an appeal until they were dead, the FBI agreed to conceal evidence.

No, ununiformed saboteurs are not entitled to the POW treatment that uniformed soldiers are. And even uniformed soldiers don't have a right to have civilian courts decide their fate.

If a Panzer division began setting up positions within the US during World War II, they wouldn't get to go to court to argue that they couldn't be attacked until probable cause was shown, and ununiformed combatants aren't entitled to more protections than uniformed ones are.

Warrington-Andrew is correct-we summarily executed German infiltrators during the Battle of the Bulge if they were out of uniform.It was permissible under the rules of war.
The famous photo of General Loan executing an NVA Major in plainclothes during the Battle of Tet in 1968 is another example of a perfectly legal action.That officer had massacred a South Vietnamese officer's family while in mufti.
Executing uniformed enemy combatants captured in battle is a war crime.Executing plainclothes operatives is not.

"The famous photo of General Loan executing an NVA Major in plainclothes during the Battle of Tet in 1968 is another example of a perfectly legal action.That officer had massacred a South Vietnamese officer's family while in mufti."

Funny, those details never seem to make it into that photo's caption. After seeing it for decades, it was only recently that I learned that it was not the photo of a North Vietnamese officer shooting an innocent South Vietnamese civilian.

"No, ununiformed saboteurs are not entitled to the POW treatment that uniformed soldiers are. And even uniformed soldiers don't have a right to have civilian courts decide their fate."

Joe and Andrew, I am not suggesting that they should have walked.

My whole point is caution in who you give powers to. You are overlooking that it did not occur in a war zone. The East Coast (all of it) was declared a "war zone" for the purposes of their trial. Following their trial, it was no longer a war zone.("War Zone" is not a descriptor, it is a legal term. Civilians are supppressed, many constitutional rights disappear. It is martial law) The FBI wanted some good press, so it convinced the public that they had "found" the Germans. They would not permit evidence in the trial that one of the Germans was an American citizen who went directly to an FBI office, turned himself in and named all of the other Germans and their locations. He got 20 years hard labor.

The examples that you guys give all take place in a "War Zone". This did not. That was inconvenient to the politcal powers,so they created one, then did away with it when it no longer suited them. Clearly unconstitutional, Article I, Section 9; Clause 3 is "No Bill of Attainder or ex post facto Law shall be passed". That is why the Supreme Court agreed not to touch it.

If it had been handled correctly, there would have been precedent on what to do with the "American Taliban". Instead we had "agony columns" in the paper over what to do.

Joe posts:
Executing uniformed enemy combatants captured in battle is a war crime.

And who was tried for the summary executions of the "guards" at Dachau and Treblinka? How about the famous, and true, scene in Saving Private Ryan (?) where the American gives cigarettes to POW's and then machine guns them all? Why did MacArthur pardon (secretly) the majority of Japanese "War Criminals"? No documents could be found to support their conviction. German "War Criminals" were not even permitted to offer a defense. No documents could be found to support their defense. War is hell. "Military justice, is to justice what Military music is to music".

Warrington-it was "Band of Brothers".
FWIW we had the Korean White Horse Division on our perimeter in Vietnam.
I won't tell you what they did,but it sure cut down on infiltrator attacks.

Posted by joe bernstein
"Warrington-it was "Band of Brothers".
FWIW we had the Korean White Horse Division on our perimeter in Vietnam.
I won't tell you what they did,but it sure cut down on infiltrator attacks."

Joe, the Turkish troops in Korea gained the same reputation. Their claim to fame was that they amputated thieves. But all we are saying is "might makes right". Or maybe, in certain circumstances, we all choose not to notice because it is effective.

The Germans captured were not in a war zone, they posed no immediate threat. When we captured communist spies during the cold war, did we shoot them out of hand? Were the Rosenbergs shot out of hand?

As Bush said "Peace is not the absence of war, it is the presence of justice."
In this country, we have a justice system. Every time we agree to wink at it (i.e. castrate child molesters, lynch blacks) we weaken it. If we wink often enough, pretty soon we don't see it at all.

I am not saying saboteurs, spys, etc should get off easily. What I am saying is that we had a system of justice that didn't suit the political desires of the President and the FBI. So, they decided to ignore it. It is probably better to say they subverted it. I think this poses a greater threat to America than any damage done by saboteurs. I think the concerns expressed by others here about this statute means they agree with me.

"First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.

Then they came for me
and there was no one left to speak out for me."

Warrington,

Martial law was no more declared in response to German saboteurs landing in the U.S., than it was when President Roosevelt gave orders to U.S. military commanders to attack regular German or Japanese military units without having to prove probable cause or seek a court order first. During a declared war, you don't have to wait until enemy forces are successful in creating war zones by killing your citizens before a military response can be offered.

Frankly, your assertion that saboteurs dropped off in the United States by the German navy by U-boat, and who brought their own explosives with them, weren't intent on committing acts of war and posed no immediate threat is bizarre. Your quarrel seems to be that war was declared by the US Government in the 1940s in response to the events of that era, rather than grand jury indictments being sought for individual violent acts.

And with regards to your point about the Rosenbergs, please direct me to the declaration of war against the countries they were collaborating with that was in effect, at the time that their activities were discovered.

Poated by Andrew:

"Frankly, your assertion that saboteurs dropped off in the United States by the German navy by U-boat, and who brought their own explosives with them, weren't intent on committing acts of war and posed no immediate threat is bizarre."

Andrew, I have never made any such assertion. Read a little more slowly, or try the decaf.

Remember that our Civil War was a war between two separate countries. We settled a lot of issues. So, even in time of war, if the Civil Courts are still operating and a crime occurs within their jurisdiction, that crime is to be handled by the civil courts. That is the law. To toss it aside for political convenience is not what we are about.

This article concerns powers granted to the President under NDAA and the AUMF. My point is that when the established law didn't suit Mr. Roosevelt, he had no problem with subverting it. Worse, many members of the government assisted him.

I have no where suggested that the German saboteurs should have walked. If they were tried in civil courts, they would have been charged with a capitol offense. Rather than a fictional account created by the FBI, the truth would have been readily available to the Americans.

First of all, at you wrote at 9:49 yesterday "they posed no immediate threat". If that doesn't refer the German saboteurs, then to whom does it refer?

Second, Civil War precedents do not support what you are arguing. Enemy combatants captured during the civil war (including at least on ununiformed combatant accused of plotting to set fire to New York City) were not given access to civil courts to adjudicate their disputes.

Posted by Andrew:

"First of all, at you wrote at 9:49 yesterday "they posed no immediate threat". If that doesn't refer the German saboteurs, then to whom does it refer?"

JC, Andrew, read a little more slowly. They were captured almost immediately, they were disarmed, they were under arrest in jail cells, "they posed no immediate threat".

Posted by Andrew:

"First of all, at you wrote at 9:49 yesterday "they posed no immediate threat". If that doesn't refer the German saboteurs, then to whom does it refer?"

JC, Andrew, read a little more slowly. They were captured almost immediately, they were disarmed, they were under arrest in jail cells, "they posed no immediate threat".