Constitutional Amendments

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

NDAA Sections 1021 and 1022

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

1. •(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
   

2. •
   

3. •(b) Covered Persons- A covered person under this section is any person as follows:
   

4. •
   

1. ◦(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
   

5. 
   

1. ◦(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
   

6. 
   

7. •(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
   

1. 1. ◦(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
      

2. 
   

1. ◦(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
   

3. 
   

1. ◦(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
   

4. 
   

1. ◦(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
   

5. 
   

6. •(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
   

7. •
   

8. •(e) Authorities- 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.
   

1. •(f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).
   

2. •
   

SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.

1. •(a) Custody Pending Disposition Under Law of War-
   

1. 1. ◦(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
      

2. 
   

1. ◦(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined--
   

3. 
   

1. 1. ■(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
      

4. 
   

1. 1. ■(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
      

5. 
   

1. ◦(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.
   

6. 
   

1. ◦(4) WAIVER FOR NATIONAL SECURITY- The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
   

7. 
   

8. •(b) Applicability to United States Citizens and Lawful Resident Aliens-
   

1. 1. ◦(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
      

2. 
   

1. ◦(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
   

3. 
   

4. •(c) Implementation Procedures-
   

1. 1. ◦(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
      

2. 
   

1. ◦(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
   

3. 
   

1. 1. ■(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
      

4. 
   

1. 1. ■(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
      

5. 
   

1. 1. ■(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation.
      

6. 
   

1. 1. ■(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other Government officials of the United States are granted access to an individual who remains in the custody of a third country.
      

7. 
   

1. 1. ■(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
      

8. 
   

9. •(d) Authorities- Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.
   

1. •(e) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

Due Process Guarantee Act of 2011

Introduced in the Senate as S 2003 and in the House as HR 3702

112th CONGRESS

1st Session

S. 2003

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

DECEMBER 15, 2011

Mrs. FEINSTEIN (for herself, Mr. LEAHY, Mr. LEE, Mr. UDALL of Colorado, Mr. KIRK, Mrs. GILLIBRAND, Mr. PAUL, Mr. COONS, Mr. DURBIN, Mr. NELSON of Florida, Mrs. SHAHEEN, Mr. UDALL of New Mexico, Mr. FRANKEN, and Mrs. MCCASKILL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

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.

1. 1Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
   
   

SECTION 1. SHORT TITLE.

1. 1This 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.

1. 1Section 4001 of title 18, United States Code, is amended--
   
   

1. 1(1) by redesignating subsection (b) as subsection (c); and
   
   (2) by inserting after subsection (a) the following:
   
   

2. 24
   
   
   ‘(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.’.

Bill to repeal Section 1021 of the NDAA 2012

Introduced in the House as HR 3785

112th CONGRESS

2d Session

H. R. 3785

To repeal section 1021 of the National Defense Authorization Act for Fiscal Year 2012.

IN THE HOUSE OF REPRESENTATIVES

January 18, 2012

Mr. PAUL introduced the following bill; which was referred to the Committee on Foreign Affairs, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To repeal section 1021 of the National Defense Authorization Act for Fiscal Year 2012.

1. •Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
   

SECTION 1. REPEAL OF SECTION 1021 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012.

1. •Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) is hereby repealed.
   

United States Congress Oath of Office

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

President of the United States Oath of Office

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Due Process and Military Detention

Amendments Act

H. R. ________

To amend the National Defense Authorization Act for Fiscal Year 2012 to provide for the trial of covered persons detained in the United States pursuant to the Authorization for Use of Military Force and to repeal the requirement for military custody.

IN THE HOUSE OF REPRESENTATIVES
Mr. SMITH of Washington introduced the following bill; which was referred to

the Committee on ____________________

A BILL

To amend the National Defense Authorization Act for Fiscal Year 2012 to provide for the trial of covered persons detained in the United States pursuant to the Authorization for Use of Military Force and to repeal the require- ment for military custody.

112TH CONGRESS 2D SESSION

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 and Military Detention Amendments Act’’.

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SEC. 2. DISPOSITION OF COVERED PERSONS DETAINED IN THE UNITED STATES PURSUANT TO THE AU- THORIZATION FOR USE OF MILITARY FORCE. Section 1021 of the National Defense Authorization

Act for Fiscal Year 2012 is amended—

(1) in subsection (c), by striking ‘‘The disposition’’ and inserting ‘‘Except as provided in subsection (g), the disposition’’; and

(2) by adding at the end the following new subsection:

‘‘(g) DISPOSITION OF COVERED PERSONS DETAINED IN THE UNITED STATES.—In the case of a covered person who is detained in the United States pursuant to the Authorization for Use of Military Force, disposition under the law of war shall only mean the transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States.’’

SEC. 3. REPEAL OF REQUIREMENT FOR MILITARY CUSTODY.

1. (a)REPEAL.—Section 1022 of the National Defense Authorization Act for Fiscal Year 2012 is hereby repealed.
   

2. (b)CONFORMING AMENDMENT.—Section 1029(b) of such Act is amended by striking ‘‘applies to’’ and all that
   

1  follows through ‘‘any other person’’ and inserting ‘‘applies

2  to any person’’.