Is the NDAA Constitutional?

[Votto]

President Obama signed into law the NDAA, which gives the government power to detain it's citizens without due process promised by the Constitution.

Those that think otherwise, feel free to defend the Presidents actions.

I don't wish to discuss how the NDAA is keeping us "safe". This is not a thread about if the NDAA is good legislation, the thread is whether it is Constitutional. If it is good legislation, then there is a process to make it Constitutional. Ignoring the Constitution does not make it go away, contrary to popular opinion.

So if Obama signed into law something that was Unconstitutional, then he should be impeached because he swore to uphold the Constitution.

What am I missing here?

 

[The2ndAmendment]

No, let me edit post to explain:

First, the NDAA plays a charade on the American people. The law makers claim that it doesn't suspend Habeas Corpus and deny due process. This is 100% true, but only for Article III Courts. Here is the exact provision of the NDAA:

http://www.govtrack.us/congress/bills/112/hr4310/text

SEC. 1029. RIGHTS UNAFFECTED.

Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

Interesting provision no? Most Americans would think that covers all courts, for how could their be any courts other than those outside the Jurisdiction of Article III?

http://wiki.answers.com/Q/What_is_the_difference_between_Article_II_courts_and_Article_III_courts

Article II addresses the executive power of the federal government, which includes the President's power as commander in chief. The term "Article II court" is rarely used (and there isn't really a solid distinction between an "Article I court" and an "Article II court"), but military courts martial are sometimes considered Article II courts. So, too, are military commissions, and the anomalous U.S. Court for Berlin. (Note, by contrast, the U.S. Court for China, which is considered an Article I court.)

Article III addresses the judicial power of the federal government. The vast majority of federal courts are "Article III courts," including the U.S. Supreme Court, the various U.S. Courts of Appeals and the District Courts...

In other words, Habeas Corpus is suspended for military (executive) courts, or Obama's courts for the years 2009-2016. So yes, both sides are right, Habeas Corpus is not suspended, at all, for regular criminals; however, Habeas Corpus is totally suspended for "military" prisoners, and has the potential to abuse political dissidents, in fact, it may already be abusing political dissidents --- how would you know?

----------------------------
Now as to the Constitutionality, from the Constitution itself:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Are we in a state of Rebellion? No.

Are we being invaded by a standing army? No.

So it's not Constitutional.

It doesn't read:

The privilege of the Writ of Habeas Corpus shall not be suspended for article III courts, unless when in Cases of Rebellion or Invasion the public Safety may require it.

 

[g5000]

President Obama signed into law the NDAA, which gives the government power to detain it's citizens without due process promised by the Constitution.

Would you please cite that part of the NDAA?

I am honestly interested in seeing that, especially in light of Hamdi v. Rumsfeld.

Thanks.

 

[The2ndAmendment]

President Obama signed into law the NDAA, which gives the government power to detain it's citizens without due process promised by the Constitution.

Would you please cite that part of the NDAA?

I am honestly interested in seeing that, especially in light of Hamdi v. Rumsfeld.

Thanks.

Read above.

 

[g5000]

President Obama signed into law the NDAA, which gives the government power to detain it's citizens without due process promised by the Constitution.

Would you please cite that part of the NDAA?

I am honestly interested in seeing that, especially in light of Hamdi v. Rumsfeld.

Thanks.

Read above.

Your post was blank at the time I posted.

But thanks, I see you edited it to include the relevant cite. Thank you.

To refute your subsequent claims, I again refer to Hamdi v. Rumsfeld. That decision stated any "enemy combatant" who is a US citizen must be provided due process.

And just in case you think that only means citizens captured in the US, Hamdi was captured in Afghanistan.

Edited to add a summary of Hamdi v Rumsfeld: http://www.casebriefs.com/blog/law/...al-and-trial-related-rights/hamdi-v-rumsfeld/

 

[The2ndAmendment]

Would you please cite that part of the NDAA?

I am honestly interested in seeing that, especially in light of Hamdi v. Rumsfeld.

Thanks.

Read above.

Your post was blank at the time I posted.

But thanks, I see you edited it to include the relevant cite. Thank you.

To refute your subsequent claims, I again refer to Hamdi v. Rumsfeld. That decision stated any "enemy combatant" who is a US citizen must be provided due process.

And just in case you think that only means citizens captured in the US, Hamdi was captured in Afghanistan.

Edited to add a summary of Hamdi v Rumsfeld: Hamdi v. Rumsfeld | Casebriefs

Why does it mention Article III courts (only)?

 

[g5000]

I have to log off for the moment. Will rejoin as soon as I can.

 

[Votto]

Regardless of whether or not this law is interpreted as applying to US persons, by specifically targeting foreign nationals, the NDAA violates the "equal protections" clause of the 14th Amendment, which guarantees that all people be treated the same under the law. Therefore, any way you slice it, this law is unconstitutional.

It is important to note that this sort of thing has occurred in the past. For the first time since the Internal Security Act of 1950 and the dark days of the McCarthy era that followed, our government has codified the power of indefinite detention into law.

 

[The2ndAmendment]

It is important to note that this sort of thing has occurred in the past. For the first time since the Internal Security Act of 1950 and the dark days of the McCarthy era that followed, our government has codified the power of indefinite detention into law.

I'll be quite honest with you.

Either every (sane) conspiracy theorist is correct, that the government is about to impose a reign of tyranny, or the government has become very dysfunctional, accidentally setting the stage for a great dictator in the future

 

[whitehall]

The problem is that the radical left, which traditionally has little or no respect for the Constitution, might take a program that has the potential for violating Constitutional rights and expand it into a freaking monster that actually has the power to execute American citizens if some unnamed bureaucracy declares them to be threats to American security. That seems to be what we have today.

 

[Votto]

The problem is that the radical left, which traditionally has little or no respect for the Constitution, might take a program that has the potential for violating Constitutional rights and expand it into a freaking monster that actually has the power to execute American citizens if some unnamed bureaucracy declares them to be threats to American security. That seems to be what we have today.

I guess they will start with people like us, eh?

 

[g5000]

Read above.

Your post was blank at the time I posted.

But thanks, I see you edited it to include the relevant cite. Thank you.

To refute your subsequent claims, I again refer to Hamdi v. Rumsfeld. That decision stated any "enemy combatant" who is a US citizen must be provided due process.

And just in case you think that only means citizens captured in the US, Hamdi was captured in Afghanistan.

Edited to add a summary of Hamdi v Rumsfeld: Hamdi v. Rumsfeld | Casebriefs

Why does it mention Article III courts (only)?

From the link I provided:

The Court also noted that since Article III of the Constitution does not have any sort of war powers analog, “the Supreme Court has shown great deference to the political branches” in war matters. However, the Court noted that this deference is “not unlimited,” and that habeas corpus is still valid. The Court found that is must approach this case by balancing the tension of individual rights and national security interests.

 

[g5000]

What is the difference between Article II courts and Article III courts

Article II addresses the executive power of the federal government, which includes the President's power as commander in chief. The term "Article II court" is rarely used (and there isn't really a solid distinction between an "Article I court" and an "Article II court"), but military courts martial are sometimes considered Article II courts. So, too, are military commissions, and the anomalous U.S. Court for Berlin. (Note, by contrast, the U.S. Court for China, which is considered an Article I court.)

Article III addresses the judicial power of the federal government. The vast majority of federal courts are "Article III courts," including the U.S. Supreme Court, the various U.S. Courts of Appeals and the District Courts...

In other words, Habeas Corpus is suspended for military (executive) courts, or Obama's courts for the years 2009-2016.

Not true, at all. There is nothing in the quoted material to support your non sequitur conclusion. Where in the world did you get the idea a person subject to courts martial is not protected by habeas corpus?

 

[whitehall]

The problem is that the radical left, which traditionally has little or no respect for the Constitution, might take a program that has the potential for violating Constitutional rights and expand it into a freaking monster that actually has the power to execute American citizens if some unnamed bureaucracy declares them to be threats to American security. That seems to be what we have today.

I guess they will start with people like us, eh?

No, they will start killing the easy targets first. They might get to "people like us" in a couple of years if they get good at it.

 

[The2ndAmendment]

What is the difference between Article II courts and Article III courts

Article II addresses the executive power of the federal government, which includes the President's power as commander in chief. The term "Article II court" is rarely used (and there isn't really a solid distinction between an "Article I court" and an "Article II court"), but military courts martial are sometimes considered Article II courts. So, too, are military commissions, and the anomalous U.S. Court for Berlin. (Note, by contrast, the U.S. Court for China, which is considered an Article I court.)

Article III addresses the judicial power of the federal government. The vast majority of federal courts are "Article III courts," including the U.S. Supreme Court, the various U.S. Courts of Appeals and the District Courts...

In other words, Habeas Corpus is suspended for military (executive) courts, or Obama's courts for the years 2009-2016.

Not true, at all. There is nothing in the quoted material to support your non sequitur conclusion. Where in the world did you get the idea a person subject to courts martial is not protected by habeas corpus?

Perhaps you can explain to us why Gitmo (and other Article II courts) detainees don't get Habeas Corpus (prepare for some exciting mental gymnastics!)?

 

[Dont Taz Me Bro]

Is the NDAA Constitutional?

You think it matters?

 

[g5000]

Regardless of whether or not this law is interpreted as applying to US persons, by specifically targeting foreign nationals, the NDAA violates the "equal protections" clause of the 14th Amendment, which guarantees that all people be treated the same under the law. Therefore, any way you slice it, this law is unconstitutional.

Any way you slice it, you have obviously not read the law and are just bloviating out of your ass. The2ndAmendment was good enough to provide a link to the full text. You should read it.

I also recommend reading Hamdi v. Rumsfeld. Here is the full decision: http://www.cato.org/sites/cato.org/files/pubs/pdf/rumsfeld.pdf

 

[Votto]

Regardless of whether or not this law is interpreted as applying to US persons, by specifically targeting foreign nationals, the NDAA violates the "equal protections" clause of the 14th Amendment, which guarantees that all people be treated the same under the law. Therefore, any way you slice it, this law is unconstitutional.

Any way you slice it, you have obviously not read the law and are just bloviating out of your ass. The2ndAmendment was good enough to provide a link to the full text. You should read it.

I also recommend reading Hamdi v. Rumsfeld. Here is the full decision: http://www.cato.org/sites/cato.org/files/pubs/pdf/rumsfeld.pdf

I did read it, and The2ndAmendment agrees with me, it is not Constitutional.

Do you disagree with us and everyone else who has posted here to date?

 

[g5000]

President Obama signed into law the NDAA, which gives the government power to detain it's citizens without due process promised by the Constitution.

Those that think otherwise, feel free to defend the Presidents actions.

I don't wish to discuss how the NDAA is keeping us "safe". This is not a thread about if the NDAA is good legislation, the thread is whether it is Constitutional. If it is good legislation, then there is a process to make it Constitutional. Ignoring the Constitution does not make it go away, contrary to popular opinion.

So if Obama signed into law something that was Unconstitutional, then he should be impeached because he swore to uphold the Constitution.

What am I missing here?

Watch Live: President Trump Signs 2019 National Defense Authorization Act

I have not seen you start a topic demanding Trump's impeachment.

Once again, the stench of hypocrisy is all over you pseudocons.

 

[g5000]

It is important to note that this sort of thing has occurred in the past. For the first time since the Internal Security Act of 1950 and the dark days of the McCarthy era that followed, our government has codified the power of indefinite detention into law.

I'll be quite honest with you.

Either every (sane) conspiracy theorist is correct, that the government is about to impose a reign of tyranny, or the government has become very dysfunctional, accidentally setting the stage for a great dictator in the future

A dictator named...Donald Trump?