How do I know? I did something members of Congress never do: I read the entire bill. That's right. HR 1540 is 1,150 pages long (1,844 with attachments), and I read the whole thing. I also did something members of Congress always do: I lied. Of course I didn't read the entire bill. I'm not that pathetic.
But I did read sections 1021 and 1022 of the bill, the sections that will hasten the death of the republic. Why did I focus on those sections? Because an aide for Congressman Steve Scalise, who represents [sic] me in Louisiana's first congressional district, told me sections 1021 and 1022 contain language stating that U.S. citizens are exempt and cannot be detained by the military. Uh, except Mr. Congressional Aide is wrong.
He first directed me to section 1022, subsection (b)(1), on page 657. Here's what it says:
"(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.--
(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."
Got that? The requirement to detain a person in military custody does not extend to citizens of the United States. But the option to detain U.S. citizens in military custody is very much alive.
Section 1022, subsection (a)(1) mandates that everyone who is captured in the course of hostilities authorized by Public Law 107–40 (an unconstitutional law) must be detained by the Armed Forces, with exceptions for U.S. citizens, some lawful resident aliens, and others whose detention by the Armed Forces could pose a national security risk. For those lucky dogs who fall under the exceptions, detention by the Armed forces is not required, but neither is it prohibited. (Also, using private paramilitary forces to detain United States citizens appears not to be prohibited, either.)
When I pointed this out to Mr. Congressional Aide, he proceeded to tell me that section 1021, subsection (e), on page 655, would certainly alleviate my concerns.
Here's that passage: "(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."
Read that again. Notice what is not to be affected: "existing law or authorities"! If the intention was that this bill would not affect protections guaranteed by the Bill of Rights, it would say so. But it doesn't say that. It says "existing law or authorities" shall not be affected.
I told all of this to Mr. Congressional Aide. I asked him whether he knows anything about existing law or authorities. I asked him whether he has ever heard of the case Hamdi v. Rumsfeld. I asked him whether he is aware that the president has claimed (and used) the authority to order the killing of U.S. citizens without charging them with a crime, or producing witnesses or evidence, or providing them with a speedy trial before a jury. I asked Mr. Congressional Aide whether he realized that that is existing law and authority. I told him that the last thing we need is a bill that affirms existing law and authority, and what we really need is a bill that overturns them.
Mr. Congressional Aide remained silent. Apparently that's a right they haven't taken away yet. After a while he directed me to section 1021, subsection (b), page 654. Ah, yes. The "Covered Persons" portion of the bill. First, it's frighteningly broad (i.e., "including any person who has committed a belligerent act . . ."). Second, it presumes that the government knows who the guilty parties are without there being a trial. This is really, really bad stuff. And to think Mr. Congressional Aide thought it would satisfy my concerns.
And now for the punch line.
After I voiced my concerns about the "Covered Persons" section to Mr. Congressional Aide, he told me, I assume with a straight face, to read a one-minute colloquy that took place on the floor of the House prior to the vote. Seriously. Try this on the guy waterboarding you: "Uh, excuse me, but didn't you read the freakin' colloquy?"
Here is the colloquy. We can all rest easy now.
Mr. MCKEON. Mr. Speaker, I yield myself 1 minute to engage in a colloquy with my friend from Louisiana. (Mr. LANDRY).
Mr. LANDRY. Will the gentleman yield?
Mr. MCKEON. I yield to the gentleman from Louisiana.
Mr. LANDRY. Mr. Speaker, I rise today in order to fulfill my constitutional duty of ensuring that the liberties and freedoms are protected of the men and women that this bill authorizes to fight for. The protections bestowed on U.S. citizens are the ones that I am concerned with the most. The question now upon us is whether or not the NDAA impacts the rights of a U.S. citizen to receive due process to challenge the legality of detention by the executive before an article III court.
Mr. MCKEON. This conference report does no such thing. It in no way affects the rights of U.S. citizens. [But that's bad! We want a bill that affects, as in restores, the rights of U.S. citizens -- TK]
Mr. LANDRY. My concern is that when the writ is suspended, the government is entirely free of judicial oversight. So do we agree that no section of the NDAA purports to suspend the writ of habeas corpus?
Mr. MCKEON. I agree completely.
Mr. LANDRY. Do you agree that, as the Supreme Court has held, ‘‘a state of war is not a blank check for the President when it comes to the rights of our citizens’’?
Mr. MCKEON. I do.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. MCKEON. I yield myself an additional 15 seconds.
Mr. LANDRY. Will the chairman assure me that together we will work with the committee to further clarify the language contained in this bill in order to ensure that the clear and precise language which protects the constitutional rights of American citizens is protected?
Mr. MCKEON. I do, and I will be happy to work with you to that end.
Mr. LANDRY. Thank you, Mr. Chairman.
Mr. MCKEON. I reserve the balance of my time.