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December 21, 2012

Quotations from our new NDAA brief

We filed another brief in the Chris Hedges case challenging the legalized kidnapping provisions of the 2012 NDAA.

Our attorneys, Bill Olson and Herb Titus, did another great job. You can download the entire brief here.

A summary follows, using quotations from the brief . . .

Does Section 1021 of the 2012 NDAA really permit the President to legally kidnap American citizens? The “government” says no. But our latest amicus brief argues on page 4 . . .

“If the Government's theory were true, then the U.S. Senate spent weeks debating and enacting . . . a meaningless and unnecessary statute.”

How is it that so many in Congress could be so confused about what they passed into law?

They never read their bills. That’s one reason. But the language of this particular bill is also subtle and tricky. We think this was done on purpose. Our brief argues on page 4 that . . .

“It is not likely that such confusion was introduced accidentally . . .”

Instead, the confusion about what the bill really does is purposeful. It allows the President to kidnap citizens and hold them without due process, while also giving Congress cover to claim that the law they passed grants no such power.

We know this is true because . . .

  • Citizens were clearly protected in the bill's first version.
  • These protections were then removed.
  • Then language was added to make it look like citizens are protected, but if you read this language closely it actually says nothing.

Our brief tells the whole story starting on page 5 . . .

“The original Senate bill… contained a limiting subsection (stating that)…”

“The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the United States…”

“However, this limiting language was deleted in a substitute bill…”

From page 5…

“… Senator Udall (then) repeated a widely circulated story that the Obama Administration opposed the detention provision because it would apply to U.S. citizens.”

“Senator Levin challenged Senator Udall's representation, revealing for the first time that it was in fact the Obama Administration that had insisted that the limiting language be removed…”

From page 6…

“During debate, Senator Lindsey Graham (R-SC) insisted that the substitute detention provision applied to U.S. citizens captured on U.S. soil, because the “authority to detain … designates the world as the battlefield, including the homeland,” and any detained person should be given neither a lawyer nor a trial.”

From pages 6 and 7…

“…Senator Dianne Feinstein (then) made a second effort (to protect citizens somewhat), proposing two amendments to ensure that U.S. citizens captured on U.S. soil would not be covered by the detention provisions. Both failed…”

From page 7…

“In an apparent effort to deflect public criticism of the detention provisions, S.Amdt. 1456 was adopted…”(NOTE: This is the tricky part of the provision that was finally passed. It looks like it exempts citizens, but a close reading shows otherwise).

“Based on their floor statements, if Senators Graham or Levin believed that this (amendment) … would impose any limitation on the President's authority to detain U.S. citizens, then neither would have voted for it. Yet both did (vote for it)…”

On page 15 our attorneys explain the detention provision that was finally passed…

“…there is no requirement that the President authorize each arrest, as the detention power “includes the authority of the Armed Forces of the United States to detain covered persons…”

“…there is no statutory constraint on an arrest being authorized by a military officer…”

“There would be no protection provided by the requirement of a Grand Jury indictment.”

“There would be no requirement of an arrest warrant issued by an Article III judge, supported by a sworn affidavit showing probable cause of the commission of a specific crime.”

“Neither would there be any protection against use of compelled testimony (extracted through something like waterboarding), or any (protection against) violation(s) of due process…”

“There would be no civilian proceedings whatsoever against the person detained…”

“Indeed, there is no requirement that the individual being detained has committed any federal crime.”

The explanation continues on pages 15 through 17 . . .

“Additionally, military arrests might be expected to occur with a greater degree of stealth than those involving local police.”

“Military officers would not likely leave a business card and a number to call for further information.”

“After the string of black Suburbans pulls away, it is difficult to believe that the military would provide relatives or lawyers with any information whatsoever as to where the person being detained was being held.”

“A suspect … likely would be held at an undisclosed location, incommunicado…”

“There likely would be no phone call from a military facility to a lawyer who could initiate habeas proceedings.”

“The arrest might occur as it did with Brandon Raub, a former Marine…”

“Raub was placed in a psychiatric ward for posting personal political views on Facebook.”

“Had it not been for some citizens videotaping the event … a legal defense may never have been mounted…”

“Had the Government succeeded in Raub’s case, he would have been denied access to any judicial hearing…”

From page 17…

“In several instances, the military has held United States citizens isolated from contact with the outside world, shuttling them around from place to place to keep their whereabouts a secret and to avoid review by Article III courts.” 

From page 19 . . .

“The Government misunderstands the Constitution, which was written for a time of war, as well as for a time of peace.”

“There is only one provision in the Constitution which can be suspended in wartime conditions: the writ of habeas corpus, and that suspension requires an act of Congress.”

“And there is only one wartime exception, that being the right to a Grand Jury indictment as set forth in the Fifth Amendment.”

“The war power does not trump the rights and protections of the people in any other instance.”


In summary, this new brief shows that . . .

  • The original detention provision contained language protecting U.S. citizens, but…
  • This limiting language was purposely removed.
  • It was replaced with language designed to give the appearance of protection without the reality.
  • This change was asked for by the Obama administration and supported by key Senate representatives of the Military Industrial Complex.

But this new brief does even more. It also . . .

  • Demonstrates that the the Authorization to Use Military Force (AUMF) is NOT equivalent to a formal Declaration of War.
  • Proves that the AUMF delegates legislative power to the President, giving him a dictatorial power to make decisions that the Constitution reserves to Congress.
  • Shows how the NDAA sec 1021 provisions also violate the Constitution's Treason Clause.

Thank you to everyone who helped fund this brief.

If you plan to itemize deductions on your tax return next year, please remember that these briefs are a project of the Downsize DC Foundation, contributions to which are tax deductible.

There are only a few days remaining to make tax deductible donations to the Foundation. You can do that here.

Merry Christmas!

Perry Willis
Downsize DC

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