Urgent Call to action: HR 4310 the Adam Smith / Justin Amash amendment to correct some of the unconstitutional aspects of the NDAA 2012 will be heard Thursday; Please contact all your state’s Congress persons and tell them to support the Adam Smith / Justin Amash amendment to H.R. 4310 (The NDAA for 2013).
Issues covered by the amendment
The Smith / Amash amendment will correct or diminish many of the unconstitutional aspects of the National Defense Authorization Act (NDAA) for Fiscal Year 2012. (See Exhibit A below for text of the amendment.) Here are some of the things it does:
- Outright repeal of § 1022, the mandatory detention provision,
- Requires all persons “detained” in the U.S. under the AUMF of 2001 or the NDAA of 2012 be “immediately” transferred for “trial and proceedings” by an “Article III” court or “an appropriate State court”,
- Prohibits the transfer of any person “detained” in the U.S from being transferred to the military under the AUMF of 2001 or the NDAA of 2012.
Issues not covered by the amendment
We have talked to the offices of Congressmen Adam Smith, Justice Amash and Walter B. Jones and have requested certain revisions to expand the scope of this amendment or to clarify it. (See Exhibit B below.)
We feel the prohibitions / restrictions on detention in the U.S. of “persons” (not just citizens) should not just be limited to detentions under the AMUF and the NDAA 2012, but under any authority. Congressman Smith’s office does not believe this proposed change will be possible due to certain technical House rules which limit the scope of the subject for amendments.
Even with the Smith / Amash amendment the NDAA 2012 purports to allow indefinite detention of U.S. citizens taken into custody overseas. We carry our “constitutional protections” as to our government anywhere in the world we travel they are not just valid in the U.S. and its territories.
Support Recommendation
Considering the significant changes made by the Smith / Amash amendment to H.R. 4310 we strongly recommend its support. We will be fighting on to fully protect our fundamental rights and further limit the abusive “authority” purportedly given the federal government under the Patriot Act and other intolerable acts.
Action Deadline
The Smith / Amash amendment will be heard on Thursday if all goes as planned. This means our efforts must occur before this coming Thursday morning.
Action Sought
This amendment needs the backing of Republicans. Call and e-mail your state’s federal House delegation and tell them you want them to support the Smith / Amash amendment to H.R. 4310.
We have provided a form letter for your sue below. (See Exhibit C below.)
If you have any questions about this or need some assistance please feel free to contact one of use.
Sincerely,
The Intolerable Acts Legal Team
Jeff Lewis
National Director
Patriot Coalition
252 876 9489
Richard D. Fry
General Counsel
Patriot Coalition
816 853 8718
Exhibit A
AMENDMENT TO H.R. 4310
OFFERED BY Ml. llllll
At the appropriate place in the bill, insert the following
new section:
1 SEC. ll. DISPOSITION OF COVERED PERSONS DETAINED
2 IN THE UNITED STATES PURSUANT TO THE
3 AUTHORIZATION FOR USE OF MILITARY
4 FORCE.
5 (a) SHORT TITLE.—This section may be cited as the
6 ‘‘Due Process and Military Detention Amendments Act’’.
7 (b) DISPOSITION.—Section 1021 of the National De8
fense Authorization Act for Fiscal Year 2012 is amend9
ed—
10 (1) in subsection (c), by striking ‘‘The disposi11
tion’’ and inserting ‘‘Except as provided in sub12
section (g), the disposition’’; and
13 (2) by adding at the end the following new sub14
sections:
15 ‘‘(g) DISPOSITION OF PERSONS DETAINED IN THE
16 UNITED STATES.—
17 ‘‘(1) PERSONS DETAINED PURSUANT TO THE
18 AUTHORIZATION FOR USE OF MILITARY FORCE OR
19 THE FISCAL YEAR 2012 OR 2013 NATIONAL DEVerDate
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2
1 FENSE AUTHORIZATION ACTS.—In the case of a cov2
ered person who is detained in the United States, or
3 a territory or possession of the United States, pursu4
ant to the Authorization for Use of Military Force,
5 this Act, or the National Defense Authorization Act
6 for Fiscal Year 2013, disposition under the law of
7 war shall occur immediately upon the person coming
8 into custody of the Federal Government and shall
9 only mean the immediate transfer of the person for
10 trial and proceedings by a court established under
11 Article III of the Constitution of the United States
12 or by an appropriate State court. Such trial and pro13
ceedings shall have all the due process as provided
14 for under the Constitution of the United States.
15 ‘‘(2) PROHIBITION ON TRANSFER TO MILITARY
16 CUSTODY.—No person detained, captured, or ar17
rested in the United States, or a territory or posses18
sion of the United States, may be transferred to the
19 custody of the Armed Forces for detention under the
20 Authorization for Use of Military Force, this Act, or
21 the National Defense Authorization Act for Fiscal
22 Year 2013.
23 ‘‘(h) RULE OF CONSTRUCTION.—This section shall
24 not be construed to authorize the detention of a person
25 within the United States, or a territory or possession of
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f:\VHLC\050312\050312.220.xml (524324|6)
3
1 the United States, under the Authorization for Use of
2 Military Force, this Act, or the National Defense Author3
ization Act for Fiscal Year 2013.’’.
4 (c) REPEAL OF REQUIREMENT FOR MILITARY CUS5
TODY.—
6 (1) REPEAL.—Section 1022 of the National
7 Defense Authorization Act for Fiscal Year 2012 is
8 hereby repealed.
9 (2) CONFORMING AMENDMENT.—Section
10 1029(b) of such Act is amended by striking ‘‘applies
11 to’’ and all that follows through ‘‘any other person’’
12 and inserting ‘‘applies to any person’’.
Exhibit B
◊ Draft of 5/14/2012 9:58:15 AM showing the changes to NDAA 1021, 1022 per the Smith –Amash amendment with our recommendations.
Yellow highlight = New language from Smith –Amash amendment including strike outs the amendment for which the amendment calls.
Blue highlight = our recommended new language
Non-highlighted Strike through= our recommended deletions.
Red = our explanation of our recommendations.
Gray highlight = we need further clarification.
2012 NDAA, Subtitle D—Counterterrorism
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(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 forces that 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.
(c) DISPOSITION UNDER LAW OF WAR.— The disposition Except as provided in subsection (g), 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.
(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.— The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).
(g) DISPOSITION OF PERSONS DETAINED IN THE UNITED STATES.—
(1) PERSONS DETAINED PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE OR THE FISCAL YEAR 2012 OR 2013 NATIONAL DEFENSE AUTHORIZATION ACTS.—In the case of a covered person who is detained [This does not appear to apply to U.S. citizens “detained “ outside the U.S. Is this the intent of the amendment? Should the term “detain” be “arrested or captured” it is ambiguous in this context.] the U.S. in the United States, or a territory or possession of the United States, pursuant to the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013 [The AUMF and NDAA 2013 should be stricken, because the protection against unconstitutional detentions should be without exception, and not merely such violations under these acts.] disposition under the law of war shall occur immediately upon the person coming into the custody, and or control [The phrase “and or control” this is to handle situations in which the individual comes into the control of an agent of the federal government, such as the organization formally known as Blackwater or some other organization or entity under the control of the U.S.] of the Federal Government and shall only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. [What is the State’s authority? Is this in relation to 1021(c)(3)?] Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States.
(2) PROHIBITION ON TRANSFER TO MILITARY CUSTODY.—No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013 except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. Exception quoted from Fifth Amendment. Again the point is to stop the violations in general not just those coming under the specified acts.]
(h) RULE OF CONSTRUCTION.—This section Act] shall not be construed to authorize the detention of a person arrested or captured within the United States, or a territory or possession of the United States, under the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013.
SMITH-AMASH AMENDMENT TO 2013 NDAA, which amends the 2012 NDAA:
Section ___, clause (c) REPEAL OF REQUIREMENT FOR MILITARY CUSTODY.—
(1) REPEAL.—Section 1022 of the National Defense Authorization Act for Fiscal Year 2012 is hereby repealed.
(2) CONFORMING AMENDMENT.—Section 1029(b) of such Act is amended by striking ‘‘applies to’’ and all that follows through ‘‘any other person’’ and inserting ‘‘applies to any person’’.
(CURRENT LAW) -2012 NDAA,
Section 1029(b) APPLICABILITY.
—The consultation requirement in subsection (a) applies to—
(1) a person who is subject to the requirements of section 1022, in accordance with a determination made pursuant to subsection (a)(2) of such section; and
(2) any other person who is held in military detention outside of the United States pursuant to the authority affirmed by section 1021.
(AS AMENDED BY AMASH/SMITH AMENDMENT) -2012 NDAA,
Section 1029(b) APPLICABILITY.
—The consultation requirement in subsection (a) applies to any person who is held in military detention outside of the United States pursuant to the authority affirmed by section 1021.
[“Affirmed” is ambiguous as only 1021(b) (1) “affirms” the AUMF, (b) (2) expands the AUMF authority.]
Jeff Lewis
National Director
Patriot Coalition
252 876 9489
Richard D. Fry
General Counsel
Patriot Coalition
816 853 8718
Exhibit C
Rep. John Doe
Monday, May 14, 2012
RE: Support the Smith / Amash amendment to H.R. 4310 (NDAA 2013)
Dear Representative Doe,
I am asking that you support the Smith / Amash amendment to H.R. 4310 (NDAA 2013) which will likely come up for floor debate this coming Thursday.
As you know there was extensive controversy over the citizen detention provisions of §§1021 and 1022 of the NDAA FY 2012. Frankly, I felt such violated many of our most fundamental personal rights. The Smith / Amash amendment to H.R. 4310 addresses most of these concerns. For instance it:
- Repeals § 1022 outright,
- Requires all persons “detained” in the U.S. under the AUMF of 2001 or the NDAA of 2012 be “immediately” transferred for “trial and proceedings” by an “Article III” court or “an appropriate State court”,
- Prohibits the transfer of any person “detained” in the U.S from being transferred to the military under the AUMF of 2001 or the NDAA of 2012.
Unlike the Landry bill the Smith / Amash amendment would requires that citizens be given due process before an actual Article III court not just that a “court” (including a military tribunal) which applies “Article III” procedures. Also, the Landry and Garamendi bills do not stop the actual “detention” of U.S. citizens by the military, whereas the Smith / Amash amendment does. The Landry bill would allow the “some evidence” standard to be applied against a citizen as legislated by the Hamdi Court but this amendment would require more. The Garamendi bill’s change of the Limitation on Detention; Control of Prisoners Act (18 U.S.C. 4001) will do nothing to ameliorate the problems with the NDAA 2012 but the Smith / Amash amendment act is direct and unequivocal.
I strongly urge you to support our fundamental liberties by supporting the Smith / Amash amendment to H.R. 4310. If for some reason you are unable to support this amendment please let me know why.
Sincerely,
