Hidden under the radar of the viciously fast news cycle is a concerning provision of law that managed to slip its way into the final version of the National Defense Authorization Act of NDAA of A somewhat unique fixture of appellate review of convictions stemming from trials by courts-martial in military justice will be coming to an end thanks to the NDAA passed by Congress which was vetoed by the President, but overridden.
Appeals will still go forward, but the strong protection of a factual sufficiency review formerly available to military appellate courts will no longer remain an avenue for appellate counsels to obtain relief.
Congress gave the military appellate courts their unique fact-finding powers in since under the UCMJ, most special and general courts-martials were very lax proceedings. This lead to them being extremely susceptible to command influence, thereby creating a risk of unjustly convicting and harshly sentencing service members.
This legislative enactment appears to be in response to the multiple sexual assault convictions being tossed by various military appellate courts due to the evidence being proven factually insufficient. Over a decade after that national tragedy, the government is still overreacting. Each time we allow our fear to undermine our freedom we concede to the very terrorists we hope to defeat.
Bernie Sanders in a statement. While we must aggressively pursue international terrorists and all of those who would do us harm, we must do it in a way that protects the Constitution and the civil liberties which make us proud to be Americans. Support for the National Defense Authorization Act is decidedly bipartisan.
Opponents like Senator Sanders an independent who describes himself as a socialist and Rand Paul a Republican and a libertarian also come from both sides of the aisle. The same people tend to be opponents of other civil-liberty-quashing bills like the Stop Online Piracy Act and the Protect IP Act, two bills being debated in congress which would give the government and the industry sponsors of the bills broad new powers over the internet and freedom of speech online.
Technology is changing the way institutions, governments, and individuals interact. The symmetry of power is shifting and governments and non-state actors alike are scrambling to keep up. Sometimes this creates real security threats. Hacking outfits like Anonymous present a real challenge to governments and corporations.
At times these groups may act honorably, attempting to expose corruption. At times they may act without such noble intentions. Either way there is no denying that security is an issue going forward and that the overreaction of governments to a myriad security risks poses its own set of problems and challenges.
I've written in the past that people concerned with civil liberties should begin to walk away from the old left-right dichotomy entirely and focus on electing civil libertarians to congress whether these are members of the left like Russ Feingold or of the right like Rand Paul.
We have few options available to us at this point. The NDAA may be challenged in the courts, and this will almost certainly happen if the president or a future president actually makes use of the powers related to US citizens. Removing that tool from the executive branch does not serve our national security.
Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles. Section modifies but fundamentally maintains unwarranted restrictions on the executive branch's authority to transfer detainees to a foreign country. This hinders the executive's ability to carry out its military, national security, and foreign relations activities and like section , would, under certain circumstances, violate constitutional separation of powers principles.
The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections and operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.
Section requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section before the Justice Department files charges or seeks an indictment.
Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.
Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section requires the President to submit a report to the Congress 60 days prior to sharing any U. Section further specifies that this report include a detailed description of the classified information to be provided.
While my Administration intends to keep the Congress fully informed of the status of U. Perhaps that will be war with Iran, perhaps some contrived emergency, or perhaps, as long as the public and media remain asleep, no occasion will be necessary at all.
It will just slowly happen of its own accord and we, like the frog in the pot of slowly boiling water, will just sit there and be consumed by our own turpitude. Do you have information you want to share with HuffPost?
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