Very likely, the Senate will soon follow their colleagues in the House and overwhelmingly (and unforgivably) pass the 2013 version of the National Defense Authorization Act (NDAA).
As we have reported, the NDAA for Fiscal Year 2013 was passed on May 18 by 299 members of the House who voted in favor of HR 4310. The bill was then sent to the Senate, where it is being deliberated by the Armed Services Committee.
Section 1033 of the House’s version of the measure reportedly preserves the “fundamental right to habeas corpus.” Here is the current text of that updated provision purporting to codify that protection:
This section would state that nothing in the Authorization for Use of Military Force (Public Law 107-40) 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 in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force (Public Law 107-40).
The double-speak contained in that paragraph is impressive even for a Capitol Hill lawyer.
Read it very closely: The new bill does nothing to prevent the indefinite detention of Americans under the 2013 NDAA; furthermore, it only reiterates that habeas corpus is a right in courts established under Article III of the Constitution. That such a right exists in the courts of the United States has never been the issue. The concern of millions of Americans from every band in the political spectrum is that Americans detained as “belligerents” under the terms of the NDAA will not be tried in Article III courts, but will be subject to military tribunals such as the one currently considering the case of the so-called “Gitmo Five.”
There is not a single syllable of the 2013 NDAA currently being considered by the Senate Armed Service Committee on Thursday that will guarantee Americans will be tried in a constitutional court and not a military commission.
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