Current Events

Smith-Amash NDAA Amendment

Given that we have the government we do, does anyone think we shouldn’t support the Smith-Amash NDAA Amendment?

So far as I can tell, we should be thrilled and grateful Congress has members like Adam Smith (D-WA) and Justin Amash (R-MI).  Their amendment would stop the President from indefinitely detaining anyone in the U.S. without due process.  Contact your congressman and encourage them to support it.  You can do so through the ACLU very easily.



  • Given what our effing constitution says it’s simply sad that we even have to have such an amendment. 

    • Jerry Kann

      First of all, Rep. Smith voted **for** the NDAA. That makes me a little dubious right there.————-Second, why not simply repeal Section 1021? (1021 is the “indefinite detention” section of the NDAA.) Ron Paul’s bill simply repeals it. Why not do that? That’s a thousand times clearer and more direct.———Is it simply because Ron Paul is a Republican and Smith is a Democrat? That seems like a trivial reason to **automatically** and uncrtically support Smith’s bill. After all, I believe it was a Democrat who signed the bill into law.———I am not a Republican, nor a Libertarian. I was a Democrat for years and then a Green for a few years more. In any event, what difference does it make?——-Smith’s bill, to its credit, simply repeals Section 1022 (*military* detention). Great. That raises the question of why Ron Paul’s bill doesn’t also repeal 1022, the way it repeals 1021?——-Why not COMBINE both bills? Simply **repeal** both sections? That seems like the best solution.——–Smith’s approach seems complicated and unnecessary, regarding 1021. We already have a prohibition against indefinite detention in the Constitution: the guarantee of **habeas corpus** in Article I, Sect. 9, Clause 2. In addition we have the guarantee of due process in the Fifth Amendment.——Why go the long way around, as Smith does? Why legitimize the language Sect. 1021, as Smith’s bill does, by dancing around it in his bill (HR 4192)? Why use an amendment to the NDAA to re-affirm rights we **already have**?! Why not simply **repeal** 1021? **And** 1022?

      Thanks for your consideration. ——–Jerry Kann—

      • Roderick Long

        This would be easier to read if you re-edited it to turn the dashes into paragraph breaks.

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  • Andrew Cohen

    Rod E: agree.
    Jerry K: Good question.  

  • DavidCheatham

    Well, I’m slightly more worried about the president claiming the right to _kill_ US citizens than to detain people.

    And I don’t think this goes far enough. _Anyone_ should get a civilian trial, period, regardless of where they are ‘captured’.

    Military courts are supposed to only for circumstances where civilian courts are not operational, like in actual combat situations, and are supposed to be an _emergency_ measure. And be thanks to much more rapid transport and our air superiority, military courts are almost entirely pointless…at worse, the military needs to be able to hold people for a week or two, until they get to a civilian court. That’s pretty much it, unless it’s WWIII or something.

    Or to put it another way, there are no categories of people that do not belong in civilian courts unless they have specifically _opted out_ of the civilian court system. (Members of the US military, of course, opted out when they joined, and POWs opt out because if they do we don’t charge them at all, we just hold them and release.)

    About the only ‘special treatment’ of accused terrorists I’d be willing to live with is to create a new nation-wide circuit court solely for the purpose of trying crimes with large amounts of classified materials, consisting of judges and lawyers cleared to hear that material.

    But this is, at least, a step in the right direction.

    • Andrew Cohen

      Agree. Especially with this: “_Anyone_ should get a civilian trial, period, regardless of where they are ‘captured’.”

      • DavidCheatham

        Right, and I think the entire concept started when people started talking about POWs, and how they weren’t tried in court. Which was, of course, because they _weren’t tried for crimes_. We did not punish POWs, we just held them out of the battle.

        Either people captured are ‘real’ POWs, in which case they have real rights blah blah blah, or they are irregular combatants and have 75% of POWs rights and we still don’t try them in court, or they’re just some guys we arrested.

        There’s not some magical middle category of people called ‘unlawful combatants’ that are somehow not covered under the civilian court system but can still be punished somehow. (Except our own military, which opted out.)

        And there’s certainly no class that it is allowable to hold without trial even if they want a trial. POWs could get trials if they wanted, and, heck, if members of the military dispute they are in the military, they probably get a civilian court to prove that.

        In fact, that right there is the entire reason that _everyone_ has access to civilian courts. Even if there are people who don’t have such access, they still have to have access to make sure they _are actually those people_.

        The second the government says ‘These sort of horrible people have no habeas corpus’, they can just call someone that without proof, because the court system is where we prove things. If they can imprison non-citizens without trial, they can imprison citizens that they _call_ non-citizens without trial. (We always hear about how someone is an ‘alledged terrorist’, but for some reason no one ever says they are just an _alleged_ non-citizen and _allegedly_ grabbed outside the US, despite the fact n one’s bothered to prove that in court.)

        Of course, a lot of the problem, a lot of the reason for military tribunals, is that we decided to detain people for doing stuff that  _isn’t illegal_.

        For example, being in Afghanistan and supporting al Qaeda. Now, we may think this is a bad thing, we might even wish it was illegal. However, we were not actually in charge of the Afghanistan laws in 2001, and cannot wave a wand and make such a thing retroactively illegal.

        And even if it was illegal, it’s a violation of Afghanistan law, not US.

        Somehow participating, or conspiracy to commit, the 9/11 attack is a violation of US law, and we could indeed arrest people for that, but some random dude who’s decided to put a few dollars in their collection plate, and wave a big al Qaeda flag…uh, no.

        We’ve, at this point, ended up in a situation where we are not even wandering around the world enforcing laws…we’re wandering around the world enforce laws that do not actually exist, arresting people for non-crimes, and eventually trying them in non-courts.

        Which, I guess, is probably better than just _killing_ them.

        • Andrew Cohen

          Thanks David!  Again, much agreement here.

  • Kevin Thurston

    Dr. Cohen-

    Good tip there. Part of me wonders what took so long for somebody to find enough coherent thought to confront the unconstitutional aspect of the NDAA. The other part of me is thankful that SOMEBODY did so, given that our representatives are not particularly quick in “getting to the chopper.” 

    Constitutionality is becoming a gray space in the spectrum of politics, almost sort of a punchline to a black comedy joke. While elementary social studies teachers taught us that the checks and balances system is so throughly crafted as to be the greatest system ever devised, sometimes I wonder if we are misguided in thinking that a nucleus of robed opinion-holders jostling over what the document OUGHT to mean is really to the long term benefit of United States Citizens fooled into thinking that the original documents protect them indefinitely and absolutely when, by design, they really don’t. 

    What I like about BHL and the many cogent thoughts being doled out here is that the constitutionality is, wittingly or unwittingly, being redesigned, so to speak. It’s refreshing to come across a cadre of libertarians NOT talking about how the constitution is the greatest thing ever, will never be matched by any document ever again, and it is what libertarianism is all about and nothing else (AKA republicans who don’t want to be associated with the religious right). More important than amending unconstitutional laws to be a little more constitutional is putting some energy into rethinking the concept of constitutional documents such that loopholes are not so easily found and shaped by authorities, adapting to mistakes by the current constitutional government that make people worse off. Alas, I’ll gladly take things like Smith-Amash for now.