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  • Smith-Amash Detainee Amendment Is Dangerous Policy

    A few congressmen are now attempting to remove some longstanding lawful tools in the counterterrorism fight.

    The Smith–Amash amendment would force the government to send any al-Qaeda member captured in the United States directly to federal court. If this amendment becomes law, it would limit a President’s flexibility and take off the table lawful military detention and lawful interrogation for intelligence purposes. For these and other reasons, the proposal is unwise.

    Despite over-the-top claims to the contrary, last year’s National Defense Authorization Act (NDAA) does not impact the conditions under which a U.S. citizen may (or may not) be detained. In fact, section 1021 of the NDAA is explicit: The law regarding how U.S. citizens are handled, including the right to habeas corpus, is the same today as it was the day before it was passed.

    Under the law of armed conflict or the law of war, a nation engaged in armed conflict has the legal authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities. A nation may detain captured enemy fighters—not as punishment but to keep them from returning to the battlefield. The law of war does not differentiate or discriminate between enemy combatants who are citizens or those who are non-citizens. History is replete with examples of citizens who became members of the opposing forces and were subject to detention when captured.

    Two former Attorneys General, a former Secretary of Homeland Security, and other experienced national security professionals have come out against this amendment. Our letter to Representative Howard “Buck” McKeon (R–CA) explains, in part, that “rewarding terrorists with greater rights for making it to the United States would actually incentivize them to come to our shores, or to recruit from within the United States, where they pose the greatest risk to the American people. Such a result is perverse.”

    The notion that the NDAA allows for U.S. citizens to be prosecuted under the Military Commissions Act of 2009 is also false. The act applies only to “alien unprivileged enemy belligerents.” Aliens under the act means non-citizens, and thus the act does not allow for prosecution of U.S. citizens by military commissions.

    Not only is habeas corpus review available to both citizens and non-citizens detained in the U.S. pursuant to the law of war, but the Supreme Court has also extended the privilege to foreign detainees held at the U.S. naval station in Guantanamo Bay, Cuba. U.S. military and national security professionals have been litigating Guantanamo detainee habeas cases for several years. Section 1021 reaffirms the military’s legal position on holding Guantanamo detainees who pose a threat to the U.S. The Department of Justice is already citing section 1021 in its legal briefs to support the military’s detention of foreign terrorists held at Guantanamo and Afghanistan.

    In summary, last year’s NDAA detainee provisions do not create or expand the government’s ability to detain U.S. citizens. In no way does the NDAA negatively impact or change the constitutional rights of U.S. citizens. Instead, section 1021 strengthens the military’s authority to detain individuals who are members of or substantially supporting al-Qaeda, the Taliban, and associated forces.

    Misinformation regarding the impact of section 1021 should not detract from this significant step toward reinforcing the legal underpinnings of the war against terrorists.

    The Smith–Amash amendment does not “fix” anything; it disarms the commander in chief during a time of war from using all tools available to him—at exactly the same time al-Qaeda is desperately recruiting Westerners to carry out terrorist attacks inside the U.S.

    Posted in Featured [slideshow_deploy]

    21 Responses to Smith-Amash Detainee Amendment Is Dangerous Policy

    1. Bobbie says:

      Since Obama's been in office, what has American democratic leaders done to promote human decencies and without contention? Without uncertainty? That's sound without question? And needless sacrifice? WHAT? Too busy making his daily celebrity appearances that a better president would have to address the public minimally and not through talk shows or comedy bits, that reveals classless, tasteless leadership! Danger is what the world is in!

      He would've been cool if he was honest and in it for peoples' freedom but he's in it because he resents men that freed men! He resents freedom and liberty that enables mankind to carry their own with that freedom and liberty his abusive presidency and unconstitutional acts is taking away daily.

    2. Mark says:

      "section 1021 of the NDAA is explicit: The law regarding how U.S. citizens are handled, including the right to habeas corpus, is the same today as it was the day before it was passed."

      Yeah, that's kind of the problem. The courts are currently up in the air about indefinite detention. See the following link: http://www.nyclu.org/case/padilla-v-bushhamdi-v-r

      What bothers me the most is how the trial ended:

      "On May 6, 2005, the government filed its appeal to the United States Court of Appeals, Fourth Circuit. On Sept. 9, 2005, the Fourth Circuit reversed the District Court’s ruling and held that President Bush had the power to hold Padilla as an enemy combatant. The plaintiff appealed to the U.S. Supreme Court.
      On Nov. 17, 2005, the government, in order to prevent the case from going to the U.S. Supreme Court, finally indicted Padilla on terrorism and conspiracy charges. The government requested that Padilla be transported from a military to civilian facility. Since the Fourth Circuit held that the Supreme Court should decide the issue of Padilla’s transfer, the Supreme Court granted the government’s request on January 4, 2006. On April 3, 2006, the Supreme Court declined to hear Padilla’s appeal."

      If I'm reading that correctly, the final say by the courts is that the president has the power to detain someone indefinitely if they are declared as an enemy combatant. There are already 2 American citizens that have been declared enemy combatants and killed overseas.

      You said "Section 1021 reaffirms the military’s legal position on holding Guantanamo detainees who pose a threat to the U.S."

      But who gets to determine who is a threat and who isn't? It is an undeniable fact that there have been detainees at Gitmo that were innocent of their charges. What did our government do when they learned of their innocence? They said "Well, now they'll probably attack us because they're mad at us, so we're going to keep them detained."

      That's insanity! That is not the America our founders created. My America should be a shining example to the world. The NDAA is one of many laws designed to give the federal government more power than our founders intended. I'm not sure why so many people think they're smarter than those who formed the foundation of our country.

    3. John Ingram says:

      The Amendment ensures that American citizens are assumed innocent until proven guilty, however heinous the charge. That is absolutely necessary.

    4. Just Say No says:

      The problem is that there is not a 0% chance that innocent people will be affected by this law. What's the difference between foreign entities coming in and abusing US citizens and domestic entities abusing US citizens, if the treatment is the same. Terror is terror, regardless. With other methods of detention, the mechanisms of legal representation and court trial reduce the chances of improper treatment.

      The last thing we need is more laws, particularly with easily abused "grey areas". Making laws that are contrary to the US Constitution are as unethical as flat-out breaking the law. So, why not just go break the law and leave citizens out of it? Every enemy deserves a trial. That's what makes our country great and others… not so great. If the allegation can't be proven in court, then it is probably a lie.

    5. Cameron Merrill says:

      Well it looks like someone with an opinion that matters (a federal judge) disagrees as the section in question is currently enjoined. You can try and sell your authoritarian vision of America and many may buy it (particularly the ignorant and/or brain-dead), but at least there is one judge in the US with some integrity. Sorry Cully, you lose.

      Cameron Merrill

    6. kyle says:

      seems it was just deemed unconstitutional and I and many others have to agree http://www.courthousenews.com/2012/05/16/46550.ht

    7. Cameron Merrill says:

      Well it looks like someone with an opinion that matters (a federal judge) disagrees as the section in question is currently enjoined. You can try and sell your authoritarian vision of America and many may buy it (particularly the ignorant and/or brain-dead), but at least there is one judge in the US with some integrity. Sorry Cully, you lose.

    8. John says:

      Why would we trust what the Heritage Foundation has to say about the rights of U.S. citizens? Any organization who claims Paul Wolfowitz as a member is highly suspect to say the very least.

    9. evan says:

      requiring due process is not dangerous – it's an essential safeguard.

    10. Hal says:

      Wow. Are you misinformed.
      Though some proponents of the 2012 NDAA detainee provisions sought to codify authority to indefinitely detain individuals picked up within the United States, Congress ultimately agreed on a provision that made clear that the NDAA shall not be construed to “affect existing law or authorities” with respect to the detention of individuals captured or arrested in the United States.
      However, “existing law” is unsettled on the question, and the Bush administration on two occasions held individuals – José Padilla (a U.S. citizen) and Ali al-Marri (a legal resident) – in military custody for years without charge or trial, with questionable-at-best legal justification.
      Tell José Padilla about his right to habeas corpus. I doubt he will agree with you. Whether he is guilty or not is for a judge and jury of his peers to decide, not a military tribunal. Otherwise, all citizens of the United States of America will be subject to the same treatment as he was.
      To hide behind a war for powers never before given to a president, takes us down a very slippery slope, one we may never recover from.

    11. Nice house of cards you've constructed…

      "Under the law of armed conflict or the law of war, a nation engaged in armed conflict has the legal authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities."

      There's only ONE little problem with that: we're NOT at war. As per the U.S. Constitution – Article 1 Section 8, only Congress can declare war. When did this happen?

      "Not only is habeas corpus review available to both citizens and non-citizens detained in the U.S. pursuant to the law of war, but the Supreme Court has also extended the PRIVILEGE (emphasis mine) to foreign detainees held at the U.S. naval station in Guantanamo Bay, Cuba."

      Great, now Habeus Corpus is a "privilege." Silly me, I thought it was an inalienable right.

      "The law of war does not differentiate or discriminate between enemy combatants who are citizens or those who are non-citizens."

      So in other words, Section 1021 CAN apply to U.S. citizens. All the Government has to do is label one a "terrorist", and all one's civil rights go out the window. And let us not forget, S-1959 (the "Violent Radicalization and Homegrown Terrorism Prevention Act") is still lurking in the wings, though the powers-that-be would have us think otherwise.

      Surely, sir, an intelligent gentleman such as yourself can see why there's a justifiable cause for concern. The NDAA reeks of fascism and, coupled with other onerous pieces of legislation, paints a very bleak picture of the future of our country. We are giving far too much power to the Executive Branch and we are exchanging far too many liberties for security; the laws are already in place to establish a totalitarian regime, it's only a matter of time before we elect a despot.

      Bush never abused the more Draconian clauses in the Patriot Act, and Obama has yet to exploit the disturbing portions of the NDAA. But what about the next guy? Or the next? Or the next? We have set the table for the next Hitler, Stalin, or Mao to take the reigns, and all we can do is expect the worst and hope for the best.

      Sooner or later, we WILL elect "The Wrong Guy" and our beautiful Republic will be no more.

    12. ANON says:

      The 4th, 5th, 6th, and 7th Amendments are FAR MORE important to preserve than ANY terrorist or al-Qaeda member. Top law scholars would disagree with you on your points. If you're a United States citizen, you deserve a fair trial – PERIOD.

    13. Jim, CT says:

      The NDAA provision to indefinitely detain someone should be viewed as part of a larger picture. Granting the author is correct about that NDAA only applies to non-citizen terrorists, another tyrannical proposal nullifies that objection (S. 1698, the Enemy Expatriation Act). I expect the Enemy Expatriation Act to eventually be enacted through executive order.

      If the President can accuse someone of being a terrorist, immediately rendering them a non-citizen, and can then indefinitely detain that person without trial, there can be no question the President has dictatorial powers abhorrent to every ideal America was founded upon.

      Also, the Constitution says "no person" not "no citizen".

    14. Rick Harris says:

      You profess how 'good' this bill is supposed to be, and if used properly, perhaps there are some benefits, however, too many times these laws are misused against innocent citizens to deprive them of their freedoms, and this is what I have seen far too much of lately in this country. I say NO to this bill, as it is directly in conflict with our Constitutional Bill of Rights.

    15. Allen says:

      If this is how the Heritage Foundation is going to justify what many consider to be an absolute assault on the Constitution … then I want to rescind my membership. I am very disappointed in the phony conservatives who now run the Congress. This something you would expect from the Democrats but not the party of Barry Goldwater and Ronald Regan… I am afraid the Republic is now officially dead.

    16. Ralyn says:

      Wow, after reading this article – I think I just lost all respect for the Heritage Foundation. I fully agree with all the comments – and so do a lot of judges it seems. I'm totally floored that the Heritage Foundation would advocate for more stripping of our Constitution.

      The last few years the DHS has been labeling many political activist groups to include Veterans as possible terrorist threats. The language is so vague that it could easily be turned against all that oppose government corruption.

    17. David McGraw says:

      I see that my suspicions of the inappropriately-named "Heritage Foundation" were spot-on. What heritage does the foundation want to maintain? Certainly nothing after Clause 29 of the Magna Carta.

    18. Joan of Snark says:

      The problem is that everyone is taking for granted that the "Section 1021 of the NDAA is simply an “affirmation” or “reaffirmation” of the authority conferred by the 2001 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2011) (the “AUMF”), passed in the wake of September 11, 2001." But unfortunately, it is not. Read Judge Kathleen Forrest's opinion in its entirety and try again (http://www.nysd.uscourts.gov/cases/show.php?db=special&id=174).

    19. Mick Burke says:

      It's official, The Heritage Foundation is another shill for the big government machine.

    20. Julian F says:

      Why are uninformed Statists like Cully even bothering to pass this off as an informed editorial? Clearly, he hasn't done much in the way of research with the conclusion he arrived at, and the smugness of the writing is almost incendiary.

      He who would choose security over liberty deserves neither.

    21. Gary Weis says:

      Have any of you contacted the previous generation of Japanese Americans who were held in camps under military authority whether they think this law is a good thing? I think I know what they will say and I will bet money that the government won't like it.

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