The bad news from last week’s passage of the 2013 National Defense Authorization Act is that Americans can still be arrested on U.S. soil and detained indefinitely without trial. Some of my colleagues would like us to believe that they fixed last year’s infamous Sections 1021 and 1022 of the NDAA, which codified into law the unconstitutional notion that some Americans are not subject to the protections of the Constitution. However, nothing in this year’s bill or amendments to the bill restored those constitutional rights.
Supporters of the one amendment that passed on this matter were hoping no one would notice that it did absolutely nothing. The amendment essentially stated that those entitled to habeas corpus protections are hereby granted habeas corpus protections. Thanks for nothing!
As Steve Vladeck, of American University’s law school, wrote of this amendment:
Just to be clear, the Gohmert Amendment does nothing whatsoever to address the central objections to the Chairman’s Mark vis-a-vis domestic detention, which are that it (1) merely provides by statute a remedy that is already available to individuals detained within the United States, and (2) says nothing about the circumstances in which individuals might actually be subject to military detention when arrested within the territorial United States (that is, whether individuals using the provided-for remedy might actually prevail). Anyone within the United States who was subject to military detention before the FY2013 NDAA would be subject to it afterward, as well….
Actually, the amendment in question makes matters worse, as it states that anyone detained on U.S. soil has the right to file a writ of habeas corpus “within 30 days” of arrest. In fact, persons detained on U.S. soil already have the right to file a habeas petition immediately upon arrest!