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Incomplete Victory: Senators
Rand Paul, Feinstein and Lee take some of the teeth out of indefinite detention

(Posted by Bryana Johnson on December 01, 2012)

“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?” asked Kentucky Senator Rand Paul, speaking before the Senate on Wednesday evening. “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.”

Earlier this month we learned that Sen. Paul was planning to force a vote on an amendment to protect the rights of American citizens detained under the controversial 2012 National Defense Authorization Act (NDAA).

The NDAA is a federal law that is passed every year, specifying the budget and expenditures of the US Department of Defense, although each year's act also includes other provisions. The explosive 2011-2012 NDAA bill included a wildly unpopular clause in Section 1021 which provided for the indefinite detention without trial of American citizens judged to be involved in terrorism or “belligerent acts” against the US.

Sen. Paul has been a vocal opponent of the indefinite detention clause in the 2011-2012 NDAA bill, lamenting what he considers “Orwellian” developments and staunchly defending the right of all American citizens to a jury trial. For two weeks he has been threatening to put the 2013 NDAA bill on hold unless he was granted a vote on his amendment to restore the jury trial rights of Americans in military detention.

Liberty activists were hoping that the massive public outcry which ensued following the passage of the 2011-2012 NDAA bill would pressure some Senators to swing over to Sen. Paul’s side.  However, due to the fact that his colleagues in the Senate this lame-duck session were mostly supporters of last year’s NDAA bill, Sen. Paul’s chances of getting them to undo that legislation seemed slim.

On Wednesday evening, something different happened.

Rand Paul rose to speak in support of a different amendment. Amendment #3018 was sponsored by California Sen. Feinstein and Mike Lee of Utah. It provides that,

“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.”

And – would you believe it ? – the Senate did something right. Albeit, it was merely an undoing (and, admittedly, a partial one) of something that was already horribly wrong. Nevertheless, it was a mighty demonstration of the power of the irate and tireless minority when the amendment passed the Senate on Thursday night. The vote was 67-29.


Marring an otherwise joyous occasion was the sad realization that the supporters of jury trial rights for American citizens are no minority at all among American citizens, but rather a massive majority. That they should be represented by only a minority – even a noble and brave one – in the Congress of their representatives, is appalling.

(First posted at The Washington Times Communities)


UPDATE: Considerable contention has arisen since the vote, with some liberty activists arguing that the last clause of the amendment undoes all of the protections it claims to restore.

Congressman Justin Amash said,

“ ‘…unless an act of congress expressly authorizes such detention.’ Well, that Act of Congress is the 2012 NDAA, which renders the rest of the Feinstein amendment meaningless.”  

Others, Congressman Ron Paul among them, seem to disagree. The elder Paul wrote on his official facebook page this morning,

“I applaud the Feinstein-Lee amendment for moving the debate forward. In the House most Republicans believe that a habeas hearing is sufficient for due process. The Feinstein-Lee amendment makes clear that anything short of a jury trial is not due process.”


 


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