By Nikki Alexander
Guest Writer
Dandelion Salad
http://nikkialexander.wordpress.com
Dec. 20, 2011
Image by Truthout.org via Flickr
Scroll down to the end for the final language that would become law if this bill passes (by amending the 1971 NDA / USC Section 4001 of title 18). As you probably know, the AUMF (Authorization for Use of Military Force) that congress passed as a result of 9/11 is the “authority” that is being used to legitimize these gulags. What Feinstein is doing with this bill is counteracting the misuse of the AUMF that has been used incrementally to broaden executive power to detain and imprison anyone, anywhere in the world without due process – OUTSIDE the judicial system.
I found an interesting report by the Congressional Research Service on the 2009 Military Commissions Act that was embedded in the 2010 NDAA, http://www.fas.org/sgp/crs/natsec/R41163.pdf in which they describe how Congress has systematically attempted to remove the courts from jurisdiction over “terrorist” cases. Separation of Powers is fundamental to checks and balances that prevent any particular branch of government from usurping unlawful authority. The (very interesting) CRS report on the history of the AUMF is here: http://www.fas.org/sgp/crs/natsec/RS22357.pdf
Co-sponsors of the bill are listed at the end of Feinstein’s press release. Let’s get busy gathering enough co-sponsors to ensure that this bill passes. ~ Nikki
***
Prohibit Indefinite Detention of American Citizens Without Trial or Charge
by Senator Dianne Feinstein
Dec. 15, 2011
‘Constitution gives every citizen the basic due process right to a trial on their charges’
Washington—Senator Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee, today introduced the Due Process Guarantee Act of 2011, legislation that states American citizens apprehended inside the United States cannot be indefinitely detained by the military.
The Due Process Guarantee Act of 2011 amends the Non-Detention Act of 1971 by providing that a Congressional authorization for the use of military force does not authorize the indefinite detention—without charge or trial—of U.S. citizens who are apprehended domestically.
The Feinstein bill also codifies a “clear-statement rule” that requires Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents. The protections for citizens and lawful permanent residents is limited to those “apprehended in the United States” and excludes citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.
Feinstein said:
“The argument is not whether citizens such as Yaser Esam Hamdi and Jose Padilla—or others who would do us harm—should be captured, interrogated, incarcerated and severely punished. They should be.
“But what about an innocent American? What about someone in the wrong place at the wrong time? The beauty of our Constitution is that it gives every citizen the basic due process right to a trial on their charges.
“Experiences over the last decade prove the country is safer now than before the 9/11 attacks. Terrorists are behind bars, dangerous plots have been thwarted. The system is working.
“We must clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens inside this country without trial or charge. I strongly believe that Constitutional due process requires U.S. citizens apprehended in the U.S. should never be held in indefinite detention. And that is what this new legislation would accomplish.”
The Due Process Guarantee Act of 2011 is cosponsored by Senators Patrick Leahy (D-Vt.), Mike Lee (R-Utah), Mark Udall (D-Colo.), Mark Kirk (R-Ill.), Rand Paul (R-Ky.), Chris Coons (D-Del.), Dick Durbin (D-Ill.), Kirsten Gillibrand (D-N.Y.), Bill Nelson (D-Fla.), Jeanne Shaheen (D-N.H.), Al Franken (D-Minn.), Tom Udall (D-N.M.) and Claire McCaskill (D-Mo.).
***
The Bill
EAS11888 S.L.C.
112THCONGRESS
1STSESSIONS. _____
To clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States and for other purposes.
IN THE SENATE OF THE UNITED STATES
Mrs. FEINSTEIN introduced the following bill; which was read twice and referred to the Committee on ______
A BILL
To clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen
or lawful permanent resident of the United States and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Due Process Guarantee Act of 2011.’’
SEC. 2. PROHIBITION ON THE INDEFINITE DETENTION OF CITIZENS AND LAWFUL PERMANENT RESIDENTS.
Section 4001 of title 18, United States Code, is amended—
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
‘‘(b)(1) An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
‘‘(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act of 2011.
Non Detention Act of 1971
http://codes.lp.findlaw.com/uscode/18/III/301/4001
18 U.S.C. § 4001 : US Code – Section 4001: Limitation on detention; control of prisons
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.
(b)(1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended, and the applicable regulations.
(2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.
Amended language
Due Process Guarantee Act of 2011
SEC. 2. PROHIBITION ON THE INDEFINITE DETENTION OF CITIZENS AND LAWFUL PERMANENT RESIDENTS.
Section 4001 of title 18, United States Code, is amended—
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
‘‘(b)(1) An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
‘‘(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act of 2011.
Therefore, US Code amended Section 4001 of title 18 would read as follows:
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.
(b)(1) An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act of 2011.
(c)(1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended, and the applicable regulations.
(2) The Attorney General may establish and conduct industries, farms, and other activities and classify the inmates; and provide for their proper government, discipline, treatment, care, rehabilitation, and reformation.
see
We’ve had a military coup in the United States!
Of course, they’ll say, “It can’t happen here.” by Ed Ciaccio
S 1867: Killing The Bill of Rights and Declaring War on Americans by Tim Gatto
Dandelion Salad 
Pingback: The Lion and the Ox: The Winter of Our Discontent By Gary Steven Corseri « Dandelion Salad
OK, one day they come for you — for 1021-type reasons only they know. They lock you up, without charge or trial. You remind them that Feinstein’s bill is the law of the land.
And they reply … Have you really read that bill? Here’s what it says:
“An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial.[and so on].”
We think you have a good point. We’re going to compromise with you. We’re going to charge you — with treason. But we’re not going to give you a trial. We’re putting you away for life and tossing the key.
And any judge in the land will agree with them. You’re not being detained without charge or trial.
Feinstein’s bill should have guaranteed charge AND trial. It does not.
This is truly amazing coming from Feinstein after she added language allowing the gutting of California water law.