BOWLING GREEN – In a March 6th op-ed for the Rowan Free Press, Congressman Richard Hudson (R-NC) claims to “set the record straight” on the 2012 National Defense Authorization Act. Instead, he trots out a glorified form letter, glosses over the real issues, and attempts to justify his vote for the 2012 NDAA because it was an “important bill that funds our military in order to keep us safe at home and protect our interests abroad…”

Since this letter is indicative of the common misunderstandings of the 2012 NDAA coming off of Capitol Hill, we have decided to respond. Read the original letter here.

Some questions have been raised recently in this publication about my vote for the National Defense Authorization Act (NDAA) for Fiscal Year 2014. I’d like to take the opportunity point out the facts about this important bill that funds our military in order to keep us safe at home and protect our interests abroad.

Though the NDAA is typically the vehicle chosen to fund our Armed Forces, it does not have to be. In an Op-Ed in the New York Times, two retired four star generals noted that the 2012 NDAA “can be vetoed without cutting financing for our troops,” and urged the President to do so.  Indeed, a separate bill was introduced to fund the military, without the detention provisions in the 2012 NDAA, and that bill was voted down. Even more practically, if funding the military is as important to the Congressman as he claims, the entire text could simply be copied into a different bill since, like all budgetary bills, the NDAA begins in the House. It may require more votes, but if extra votes are what stands between your Congressman and your right to a trial he shouldn’t be in office.

As a true Constitutional Conservative, I understand and have a great appreciation for the importance of protecting our right to privacy. When first examining the bill, one of my top priorities was to refuse supporting any type of program that trades our guaranteed civil liberties for the promise of security.

The issue that has raised some concern is a provision that stops President Obama from closing the prison in Guantanamo Bay and transferring over 150 terrorists to American soil or returning them to their home nations. This section of the bill, known commonly as the indefinite detention provision, specifically stipulates that it does not apply to U.S. citizens.

Contributing to the confusion with Rep. Hudson’s op-ed, the Congressman does not even refer to the correct sections of the law.  The provisions that prohibited transfer of detainees from Guantanamo Bay are sections 1026-1028, which are not referred to as the detention provisions and contain no specific statement that they do not apply to United States citizens. Since it is very simple to read the difference, this causes us to question whether or not Rep.Hudson has actually read the law. Further, there are three provisions in the detainee transfers portion, and two that have been commonly referred to as the “detention provisions,” while Rep. Gibson maintains there is only one “provision.”

In order to further codify this principle and ensure beyond any shred of doubt that American citizens’ rights would not be infringed, I supported two amendments that were included in the final version that was signed into law.

While we applaud the intent of Rep. Hudson to support amendments that supposedly protect the rights of American citizens in spite of the 2012 NDAA, he voted against the only amendment that would truly repeal the detention provisions for all persons just last year. The Smith-Gibson amendment, the only 2013 amendment supported by PANDA, failed on the house floor by only 26 votes…one of which was Congressman Hudson.

Does the Congressman believe that only citizens have unalienable rights? If so, the Founders certainly disagreed. One will not find a single mention of “citizen” in the Bill of Rights, because citizen is a legal status. If the Federal government could strip your rights by merely stripping your citizenship, they are no longer unalienable. They are granted and taken by the government, the very opposite of what the founders had in mind. Even the House Armed Services Committee, the body responsible for first hearing each NDAA, tacitly acknowledges that fact. Writes Representative Justin Amash (R-MI):

“Even House Armed Services tacitly acknowledges that the Constitution’s protections apply to both citizens and non-citizens within the U.S. The 2013 NDAA recognizes this fact when it states that habeas is available “for any person who is detained in the United States.” [emphasis added] If House Armed Services had drafted Sec. 1033 [of the 2013 NDAA] to distinguish between citizens and non-citizens or if we had done the same, the legislation likely would have run afoul of the Constitution’s Equal Protection Clause.”

The first establishes that nothing in the Authorization for Use of Military Force (P.L. 107-40), or any other law, shall deny the availability of the writ of habeas corpus to any U.S. citizen apprehended inside the United States. The amendment also requires that the federal government has the burden of proving by clear and convincing evidence that any U.S. citizen is an unprivileged enemy belligerent.

The Gohmert Amendment, as this language was called, did nothing to protect any person, including American citizens, from the 2012 NDAA or military detention in general. In partnership with the Patriot Coalition, we did an in-depth analysis of the amendment here, but Rep. Amash again sums it up nicely:

“While we’re sympathetic to the intent behind Gohmert-Rigell-Landry, their amendment does nothing to improve the underlying bill. The amendment states that the NDAA doesn’t “deny any Constitutional rights . . . [to a person] who is otherwise entitled to . . . such rights.” Put simply: if you have constitutional rights you have constitutional rights. Obviously, that doesn’t protect Americans’ rights or change existing law. It does nothing.

The Constitution protects the right to a charge and a trial for every person arrested in the U.S. The Supreme Court has not ruled on this issue because each time the Court appeared ready to decide the issue, the administration has transferred the detainees to the criminal justice system. The Bush administration did this in 2006 with U.S. citizen Jose Padilla—but only after holding him for more than three years in a military brig. The Obama administration did this in 2009 with Ali al-Marri. So the Supreme Court has not yet been given the opportunity to invalidate the indefinite detention of persons arrested on U.S. soil.”

The Gohmert Amendment was the only survivor of our successful fight against 3 amendments to the 2012 NDAA, mere smoke and mirrors that make things worse, and it does nothing to protect the rights of any person, or American citizen, here in the United States.

The second requires the Secretary of Defense to submit an annual report to Congress on U.S. citizens subject to military detention that includes: the name of each U.S. citizen; the legal justification for such detention; and the steps taken to provide judicial process for or to release each such citizen. The amendment stipulates that the report shall be made available to all Members of Congress and be created in unclassified form.”

To call this provision a “protection” is quite the stretch. It simply requires that a report be sent to Congress, the same Congress that wholeheartedly voted for the 2012 NDAA 283-136 in the House, and 93-7 in the Senate, the same Congress that sat by and did nothing while 120,000 Japanese-Americans were detained under Executive Order 9066, and the same Congress that, time and time again, has refused to pass meaningful amendments to the 2012 NDAA’s detention provisions. This Congress will get a report on who was detained. Congratulations.

Further, this is only a report. Referring to a report as if it were a protection is like referring to the receipt as saving you money. As an American citizen, you are now sitting in military prison for a crime you did not commit, and at least Congress gets a report on you. This is not a protection, it is smoke and mirrors. The receipt for your military detention has been given to the same people who authorized it in the first place.

Until Congress actually prevents unlawful military detention, there is no protection, only platitudes and form letters, and we inch ever closer to a repeat of a WWII style mass incarceration. Since Congressman Hudson is unwilling to defend your right to a trial, it may be time to replace him with someone who will.

Dan Johnson is the Founder and National Director of People Against the NDAA.