Heritage Gets it Wrong. Again.

Supporters of detention provisions written into the NDAA continue to perpetuate this myth that no “non-terrorist” could ever possibly find himself held indefinitely until the end of hostilities.

In essence, they claim, “If the government says you’re a terrorist, by God you must be a terrorist.”

The Heritage Foundation played this little game in a May 16 column that Liberty News Network juxtaposed with a column written by me and Shahid Buttar over at the Bill of Rights Defense Committee.

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.

The Wall Street Journal editorial board made a similar argument in a recent op-ed, suggesting that opposition to NDAA was akin to treating Nazi infiltrators the same as common burglars.

In fact, the Constitution does guarantee all persons on American soil the same right to due process – speeders, burglars and mass murderers. Yes, that even includes accused traitors, per Article III Sec. 3 of the Constitution. But NDAA detention provisions strip away those fundamental rights, replacing them with the discretion of the president, giving him leeway to hold those he deems “terrorists” until the “end of hostilities.” And Congress filled sections 1021 and 1022 of the NDAA with undefined terms such as “associated forces,” “substantially supports” and “belligerent acts,” again leaving interpretation to the president.

As you can see by the language in sections 1021 and 1022, Heritage vastly oversimplifies things. It’s not only “al Qaeda members” at risk of getting caught up in some federal dragnet. (Notice the presumption there – if the feds say she is a member of al Qaeda, it must be true!) In truth, those at risk of indefinite detention until the end of never-ending hostilities also include accused al Qaeda members. And people accused of substantially supporting al Qaeda. And people accused of involvement with “associated forces.” And people accused of committing “belligerent acts.”

I don’t know what all that means.

And nobody else does either.

That’s the problem!

In the world of Heritage, NDAA detention presents no problem because it will only apply to terrorists.  But by that line of reasoning, we don’t need due process for accused murderers either. After all, the police would never falsely charge somebody with murder, now would they? And we certainly don’t need due process for the Wall Street Journal’s mythical burglar. I mean really, why exactly did the states insist on the Fourth, Fifth and Sixth Amendments anyway?

Heritage argues that the laws of war justify these vastly expanded presidential powers.

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.

But the laws of war only apply “in the theater of war,” in other words, on the field of battle. So Heritage asserts that every square inch of the United States, from Central Park to my back yard, counts as a battlefield. I beg to differ. I just looked out into my back yard about 15 minutes ago. No armies lined up. No military installations next door. No cannon fire pouring in from the Circle K up the street.  And yet Heritage, and others who support NDAA detention, insist that the federal government legitimately possess the authority to come into my home, drag me off and treat me as a war criminal if somebody accuses me of substantially supporting an associated force. Or something.

Seem farfetched? Consider the ordeal Nancy Genovese endured. The Connecticut mother of three was taking pictures outside of Gabreski Airport in Suffolk County, N.Y.  A Southampton Town Police officer pulled her over as she was leaving and demanded to know why she was photographing this airport. For the next six hours, law enforcement forcibly detained the Genovese, accusing her of posing a security threat and of possible terrorist activity. Authorities drug her off to jail and held her overnight. Ultimately, she was charged with trespassing – a charge prosecutors eventually dropped because she was on public property. Her ordeal wasn’t over. Read her whole story HERE.

But it’s OK. The government will only use detention powers for good, against the big, bad, evil terrorists.

Forgive my skepticism.

(Did I just hear a drone fly over?)

Anyway, Heritage goes on to assure us all that the provisions in the NDAA don’t change anything.

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.

I’ve heard this a million times, from everybody I’ve ever talked to that supports this garbage. And if it’s true, I would love for somebody over there to answer me this one question – because nobody has managed to answer it yet.

If the NDAA detention provisions pose no threat to American citizens, why did the Senate vote down the original Feinstein amendment, which provided in the simplest terms that section 1021, “does not include the authority to detain a citizen of the United States without trial until the end of hostilities?”

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The bottom line is that the NDAA empowers the president to lock up people on American soil and throw away the key. We should not trust any president with such power. Not this president. Not the last president. And not the next president. In the words of Thomas Jefferson, “In questions of power…let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

The president has an obligation to defend the U.S., but no federal agent may exercise powers not granted, or violate the Bill of Rights, even in pursuance of a legitimate constitutional role. The U.S must vigorously defend itself against terrorist threats, but our defense cannot come at the expense of our most fundamental values. We run the risk of destroying the very essence of America in our attempts to defend her.

For a more detailed legal analysis on the NDAA, click HERE.

Mike Maharrey

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