The main portion of this will be about the current administrations use, support and passage of the NDAA along with it's 2008 Democratic platform
denouncing Bush policies about controversial issues including, wiretapping, privacy, due process and Guantanamo Bay. Too stay fair to both sides of
the aisle I will include a statement made during the debates earlier this year by Mitt Romney in regards to the NDAA. After this we'll move onward to
a brief description and history to understand how the NDAA provisions on detention came to fruition during the Bush years, and it's subsequent
continuation in the Obama administration.
In the clip below Romney was asked about President Obama's signing into law a provision of the NDAA which allowed him to indefinitely detain U.S.
citizens in military custody.
Here is his response:
The Path to the NDAA
Was paved by President George W. Bush, then Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and several other senior level
administration officials. Acting unilaterally and without congressional sanction, the Bush administration imposed the most radical steps in it's
approach to indefinite detention of individuals on foreign soil, and the arrest of American citizens on U.S. soil declared enemy combatants.
The arrest of Jose Padilla in Chicago brings this key issue of military
detention for U.S. citizens to light, even though he was later transferred to a civilian court, indefinite detention of U.S. citizens from this point
forward stresses the power of the Federal government to indefinitely detain it's citizens without due process or trial.
During the Bush years, despite massive public and press attention to the administration’s detention policies, Congress remained largely out of
the picture. While the USA PATRIOT Act contained some provisions on detention, they were never put to use; the Bush administration preferred to create
a detention system that was, it assumed, largely free of legal constraints and judicial oversight.
The military prison at Guantanamo and the CIA’s secret prison system were therefore created by executive fiat, without congressional input or
restriction. When cases challenging Guantanamo and the military detention of US citizens on US soil got to court, however, the administration claimed
that the Authorization for Use of Military Force (AUMF), a joint resolution passed by Congress in September 2001, gave congressional approval for
In 2008 the Democrats ran on the platform of "Renewing America's Promise," for the
sake of time we are going to focus on the section called "Reclaiming Our Constitution and Our Liberties."
The first part we are going to look at is from this section:
We will not ship away prisoners in the dead of night to be tortured in far-off countries, or detain without trial or charge prisoners who can and
should be brought to justice for their crimes, or maintain a network of secret prisons to jail people beyond the reach of the law. We will respect the
time-honored principle of habeas corpus, the seven century-old right of individuals to challenge the terms of their own detention that was recently
reaffirmed by our Supreme Court.
Shortly after Obama was elected to office a filing was made in federal court
(pdf) which adopted the policy towards Guantanamo that the
Bush administration stated and declared, "that anyone allegedly involved in terrorism were involved in a war and therefore can be detained
indefinitely," of course minus the torture.
The second part is from the above section "Reclaiming our Constitution and our Liberties." The following statement was made rejecting the use of
National Security Letters and the Patriot act, promising to overturn the unconstitutional executive decision made during the Bush years.
We reject the use of national security letters to spy on citizens who are not suspected of a crime. We reject the tracking of citizens who do
nothing more than protest a misguided war. We reject torture. We reject sweeping claims of "inherent" presidential power. We will revisit the Patriot
Act and overturn unconstitutional executive decisions issued during the past eight years. We will not use signing statements to nullify or undermine
duly enacted law. And we will ensure that law-abiding Americans of any origin, including Arab-Americans and Muslim-Americans, do not become the
scapegoats of national security fears.
The rejection of these key provisions of the Patriot Act allowing the use of NSL and wiretapping did actually receive support from several Democrats
attempting to reform it. Senator Russ Feingold along with several other Senators introduced a Bill entitled
"the Justice Act." This Bill would have effectively curtailed the use of NSL's
and the FISA Amendment Act.
Feingold's bill would have curtailed the use of NSLs as well as "215" orders, which allow the government to seize "any tangible thing" as long as
it can demonstrate "relevance" to an ongoing terrorism investigation. The JUSTICE Act also would have reformed the FISA Amendments Act to limit "bulk"
collection of U.S. citizen communications and forced the government to demonstrate pertinence to fighting terrorism.
The provisions allow the government, with permission from a special court, to obtain roving wiretaps over multiple communication devices, seize
suspects’ records without their knowledge, and conduct surveillance of a so-called “lone wolf,” or someone deemed suspicious but without any
known ties to an organized terrorist group.
Through several years of defending the very practices derided by the campaign in 2008, the administration has
signed into law a controversial Bill named the
"National Defense Authorization Act 2012." This Bill codified into law for the first time the domestic detention of citizens. Although highly
criticized by many who have reviewed certain provisions, specifically section 1021, it remains highly skeptical.
Many lawsuits were brought against the NDAA. Receiving a temporary
injunction a group of journalists and
activists sought to declare the provision unconstitutional by U.S. District Judge Katherine Forrest, of New York's Eastern District. However after the
judge ordered the injunction the government argued it's case.
Torrance told the court that judicial interpretation of the AUMF made it identical to the NDAA, which led the judge to ask him why it was
necessary for the government to defend the NDAA if that was indeed the case. Torrance, who fumbled for answers before the judge's questioning, added
that the United States does not differentiate under which law it holds military detainees. Judge Forrest, looking incredulous, said that if this was
actually true the government could be found in contempt of court for violating orders prohibiting any detention under the NDAA.
This of course is my opinion. There are many other issues that can be discussed that can add to this topic, but I'm getting tired. Time for a nap.
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