On November 30, 2012 Senator Rand Paul co-sponsored a bill to restore the right to trial by jury and due process for Americans. He is co-sponsoring the Fienstein-Lee Amendment (H.R. 3018) to the National Defense Authorization Act ("NDAA"), an amendment which passed by a vote of 67-29. It is not enough.
Section 1021 of the NDAA suspends the due process guarantees of the United States Constitution and allows for the indefinite detention of Americans without trial. Senator Paul's own amendment would have rescinded Section 1021 of the NDAA entirely, but he could not get enough support.
In practical terms, the Feinstein-Lee Amendment does not go far enough because it states, "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 unless an act of Congress expressly authorizes it." That "act of Congress" is already the NDAA's Section 1021, which negates the Feinstein Amendment. The Feinstein Amendment is an exercise in futility.
On June 15, 1215, on a field at Runnymeade King John entered into a pact with his feudal barons that would outline the terms of a peace and end to the conflict that ensued in England following the death of King Richard I. That document, called the Great Charter or Magna Carta for the first time declared the human right to be protected from tyranny and capricious prosecution by introducing the concept of due process of law and the right to a trial by jury, “no free man shall be taken or imprisoned or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him unless by the lawful judgment of his peers, or by the law of the land." The Magna Carta set boundaries upon the King's powers, the establishment of these boundaries, was the birth of due process. The Great Charter also established the concept of a law that was above executive edict, caprice and legislative whim. It was a concept of law above the laws and whims of the rulers that was embraced by the American Revolutionaries and came to provide the foundations for our Constitution's right of due process and trial by jury.
Thomas Jefferson considered the right to trial by jury, “the only anchor ever imagined by man, by which government can be held to the principles of its constitution.”
However, most Americans have not realized that Congress suspended Due Process almost one year ago. Most Americans do not realize that the ancient right to trial by jury and due process of the law before the taking of life, liberty and property has been suspended by Section 1021 since its passage on December 31, 2011. Nor do they realize how few of their elected representatives will protect their most fundamental due process rights-the very basis of the American legal system and way of life.
R. Tamara de Silva