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The NDAA and the Death of the Democratic State

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The second central argument by the government was even more specious. Loeb claimed that Subsection 1021(e) of the NDAA exempts citizens from detention. Section 1021(e) states: "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." 

Afran countered Loeb by saying that Subsection 1021(e) illustrated that the NDAA assumed that U.S. citizens would be detained by the military, overturning two centuries of domestic law that forbids the military to carry out domestic policing. And military detention of citizens, Afran noted, is not permitted under the Constitution.

Afran quoted the NDAA bill's primary sponsor, Sen. Lindsey Graham, R-S.C., who said on the floor of the Senate:

"In the case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don't have to worry very long, because our federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn't [just] go to a political rally."

Afran told the court that Graham's statement implicitly acknowledged that U.S. citizens could be detained by the military under 1021(b)(2). "There is no reason for the sponsor to make that statement if he does not realize that the statute causes that chilling fear," Afran told the judges.

After the hearing Afran explained: "If the senator who sponsored and managed the bill believed people would be afraid of the law, then the plaintiffs obviously have a reasonably objective basis to fear the statute."

In speaking to the court Afran said of 1021(e): "It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?"

This was a question Judge Lohier, at Afran's urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold U.S. citizens.

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Chris Hedges spent nearly two decades as a foreign correspondent in Central America, the Middle East, Africa and the Balkans. He has reported from more than 50 countries and has worked for The Christian Science Monitor, National Public Radio, The Dallas Morning News and The New York Times, for which he was a foreign correspondent for 15 years.

Hedges was part of the team of (more...)

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The explanations given by Mr. Hedges deserve a gre... by Timothy Gatto on Monday, Feb 11, 2013 at 12:55:21 PM
amend the Constitution was through the amendment p... by Mark Adams JD/MBA on Monday, Feb 11, 2013 at 7:18:24 PM
Professor Francis A. Boyle, international law and... by Joan Mootry on Monday, Feb 11, 2013 at 10:35:39 PM
While I follow the discussions of the horrendous e... by Susan Lee Schwartz on Monday, Feb 11, 2013 at 2:07:43 PM
was run through the wringer because her husband su... by Mark Adams JD/MBA on Monday, Feb 11, 2013 at 7:33:17 PM
An American citizen, declared by George W Bush, to... by Lance Ciepiela on Monday, Feb 11, 2013 at 4:50:53 PM
thing about all of this is that Chris Hedges and t... by Kevin Tully on Monday, Feb 11, 2013 at 8:05:32 PM
According to the VA, the FIRST Gulf War, in 1990, ... by 911TRUTH on Monday, Feb 11, 2013 at 8:33:08 PM
911truth4peace  The deception surrounding 9/... by Lance Ciepiela on Wednesday, Feb 13, 2013 at 9:33:10 AM
I only hope Hedges joins with people like Jill Ste... by Charles-Eva Manning on Monday, Feb 11, 2013 at 9:16:37 PM
all & any other 3rd Parties, during the next e... by Jill Herendeen on Tuesday, Feb 12, 2013 at 11:12:53 AM