Congress and President Obama have declared war on Americans. The last time America was declared a military zone President Roosevelt authorized the internment of Americans with Executive Order 9066, issued February 19, 1942.
NDAA 2012 repeals the 4th, 5th, 6th, and 8th amendments to the Constitution. The Constitution is the supreme law of the land and declares our right to due process. No law shall supersede it. We have a right to our day in court with a jury of our peers.
One of the causes of the American Revolution was the denial of the right to jury trial, the use of admiralty courts (military tribunals) instead, and the application of the laws of war to the colonists. After that experience, and being well aware of the infamous Star Chamber in English history, the Founders ensured that the international laws of war would apply only to foreign enemies, not to the American people. Thus, the Article III Treason Clause establishes the only constitutional form of trial for an American, not serving in the military, who is accused of making war on his own nation. Such a trial for treason must be before a civilian jury, not a tribunal.
The international laws of war do not trump our Bill of Rights. We reject as illegitimate any such claimed power, as did the Supreme Court in Ex Parte Milligan (1865). Any attempt to apply the laws of war to American civilians, under any pretext, such as against domestic “militia” groups the government brands “domestic terrorists,” is an act of war and an act of treason.
Senator Graham said that America is part of the battlefield, and as such, Americans can be captured, interrogated, and killed with no due process. Senators Graham, Kyl, and McCain say the law of war (military law) applies to us.
The senators claim the 2001 AUMF is in accordance with 1971 Non-Detention Act and allows Americans to be detained indefinitely without acces to an attorney. They argue that the Supreme Court has held that the President has the constitutional authority to detain enemy combatants, including U.S. citizens.
Non - Detention Act 1971:
No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress
The senators say the act of congress that allows you be detained indefinitely is the AUMF 2001. So, no, the paragraph below from NDAA 2012 Section 1021 does not protect you. We are talking about the law of war, according to our congressmen and president, not criminal law which includes due process.
(d) CONSTRUCTION.—Nothing in this section is in
tended to limit or expand the authority of the President
or the scope of the Authorization for Use of Military
Force.
Senator Graham: Under domestic criminal law, we can't hold someone indefinitely.The only way to do that legally is under the law of war.
http://www.emptywheel.net/wp-content/uploads/2011/12/111201-Senate-NDAA-Debate.pdf
Senator Kyl - I ask unanimous consent to have printed in the Record a statement that makes very clear where military detention is necessary: to allow intelligence gathering that will prevent future terrorist attacks against the American people.
There being no objection, the material was ordered to be printed in the Record, as follows: Wartime Detention of Enemy Combatants--Including U.S. Citizens Who Join the Forces of the Enemy--Is An Established Practice That Is Clearly Constitutional.
Senator Kyl goes on to say:
Nothing precludes the United States, the executive branch, from thereafter deciding to try the individual as a criminal in the criminal courts with all the attendant rights of a criminal. But until that determination, it cannot be denied that the executive has the authority to hold people as military combatants, gather intelligence necessary, and hold that individual until the cessation of hostilities.
In military custody, by contrast, not only are there no lawyers for terrorists. The indefinite nature of the detention--it can last as long as the war continues--itself creates conditions that allow effective interrogation. It creates the relationship of dependency and trust that experienced interrogators have made clear is critical to persuading terrorist detainees to talk. Navy Vice-Admiral Lowell Jacoby, who at the time was the Director of the Defense Intelligence Agency, explained how military custody is critical to effective interrogation in a declaration that he submitted in the Padilla litigation. He emphasized that successful noncoercive interrogation takes time--and it requires keeping the detainee away from lawyers.
http://www.emptywheel.net/wp-content/uploads/2011/12/111201-Senate-NDAA-Debate.pdf
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