On Thrusday an amendment authored by Senators Mike Lee (RLC-UT) and Daine Feinstein (D-CA) which alters the NDAA to protect citizens from arrest without a warrant and guarantees the right to a trial was passed 67-29 by the Senate. This came after an impassioned speech in support by Sen. Rand Paul (RLC-KY) on Wednesday in which he said:
“If you don’t have a right to trial by jury, you do not have due process. You do not have a Constitution. What are you fighting against and for if you throw the Constitution out? When zealots of the government arrest suspects or radicals without warrants, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.”
Paul had also threatened to put a filibuster hold on the NDAA bill if an attempt was made to pass it with the provisions allowing unconstitutional detention of citizens without a trial included. Since the passage of an earlier version of the NDAA more than a year ago, grassroots groups like the Republican Liberty Caucus have been calling and emailing members of the House and Senate relentlessly expressing opposition to the detention provisions in the bill and it appears that for once our legislative leaders actually listened to the people. Sadly about half of the Republicans in the Senate voted against the amendment.
While the Lee-Feinstein amendment is not as comprehensive as Rand Paul’s version which has had trouble passing the Senate, it does address the most fundamental civil liberties concerns with the NDAA. The substandive part of the Amendment reads:
“(b)(1) An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
“(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the National Defense Authorization Act For Fiscal Year 2013.
“(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.”
The final clause of (b)(1) has attracted some criticism, including from Representative Justin Amash (RLC-MI) who whote:
“The Feinstein amendment to the 2013 NDAA does NOT protect you from indefinite detention without charge or trial. In fact, it explicitly permits such detention so long as the detention is approved by an Act of Congress . . . such as the 2012 NDAA.”
Prior to the amendment the NDAA permitted detentions solely on presidential authority, but Amash and others are concerned that Congress could use the option provided in the amendment to reverse the protection at will, or that courts could interpret the NDAA itself as such an authorization. However, Senator Lee has issued an explanation of how the amendment works in context which makes very clear that no existing legislation including the NDAA itself would negate the protections in the amendment, hailing it as “a clear victory for civil libertarians and should be celebrated as a strong step forward in protecting due process rights for all Americans.”
However, a federal court did already grant an injunction against the detention provision in the NDAA and it is likely that if it were further tested in the courts it would be found unconstitutional. In addition, changes to the main text of the 2012 version of the NDAA which actually expand detention authority beyond earlier versions demanded that some response be made to protect civil liberties
While this is not a perfect victory, it remains a major win for civil libertarians who do not believe that the people should have to sacrifice their most sacred rights, nor should the nation abandon the rule of law, even in a times of crisis or war. If the Bill of Rights can be discarded just because we feel threatened, then we have already thrown away the very values for which we fight as a nation.