Cross Posted From Tenth Amendment Center
Posted by Mike Maharrey
But every once in a while, an issue bridges the gap and brings together traditional adversaries. In the face of something particularly heinous, Americans from across the political spectrum will stand together and fight as one. It takes something ominous, an act James Madison might describe as “palpable and dangerous.” The detention provisions without due process written into sections 1021 and 1022 of the Defense Authorization Act serve as just such a catalyst.
Section 1021 affirms the military’s authority to detain “covered persons,” which includes, “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.” Many legal experts find the vagueness of terms such as “associated forces,” “coalition partners” and “hostilities” troubling and open to abuse.
Under 1021, a qualifying person, “may be detained under the law of war, without trial, until the end of hostilities.”
An amendment was added to section 1021 stipulating that “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.” (Emphasis added) This language also proves problematic. What about a U.S. citizen captured outside of the United States? Or a non-citizen captured on American soil? Does the basic right of due process in the United States only extend to citizens within the country’s borders? More troubling, both President Bush and Obama argued that the original Authorization of Military Force passed by Congress after 9-11 already grants the power to detain citizens, even on American soil. So the words “affect existing law or authorities” may not provide the protection proponents of the bill claim.
In fact, an earlier amendment specifically stating section 1021, “does not include the authority to detain a citizen of the United States without trial until the end of hostilities,” went down to defeat by a 55-45 vote in the Senate.
Section 1022 requires that “a member of, or part of, al-Qaeda or an associated force” and who “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” be held “in military custody pending disposition under the law of war,” absent a Presidential waiver. Lawmakers pulled a sneaky trick in section 1022, titling it “Military Custody for Foreign al Qaeda Terrorists.” But nothing in the actual language of the section excludes American citizens or resident aliens. And many civil libertarians argue holding any person without due process violates basic human rights.
The disclaimer NDAA supporters point to as a protection for Americans reads, “The requirement of military detention does not apply to U.S. citizens.” But notice that the language does not preclude the option of military detention.
“It authorizes the president to employ the military to show up on any of our doorsteps and say, ‘Well, we think based upon secret facts, you’re connected in some way, linked, with some kind of associated power with al Qaeda that’s fighting against our coalition partners, whoever they are. You can’t challenge any of our evidence, and you can go to Guantanamo Bay and rot for the rest of your life.’ And that’s the end of the matter,” Bruce Fein said.
On Thursday, the Tenth Amendment Center partnered with the Bill of Rights Defense Committee and Demand Progress to host a press conference call highlighting state and local action against NDAA detention provisions. The call featured both Democratic and Republican Party officials, along with two well-known civil liberties activists normally considered to frequent opposite sides of the political aisle.
Author and journalist Naomi Wolf served as an adviser to Vice Pres. Al Gore during his presidential campaign. She set the tone for the afternoon, humanizing an issue that often gets wrapped up in complicated legalese.
“I am delighted that organizations from across the political spectrum are uniting on this, and it’s our only hope really, because this is pretty much the worst thing I’ve seen in my lifetime, and as a mother it frightens me very much for my children’s future. And of course, it’s completely antithetical to the very meaning of the word America.”
Wolf wrote a book about 10 steps to a closed society. She asserts that NDAA detention gets close to the end-game.
“Step number 10 is this one – suspend the rule of law. History shows once you hit this tipping-point where a law is passed to suspend the law, which is exactly how Nazis came to power in Germany in 1933; they did absolutely nothing without the rule of law, until the rule of law undermined the rule of law; once you reach that point, history shows that that is the point of no return,” she said. “Once government can take people in without charge, or trial, then, you know, journalists aren’t safe, union leaders aren’t safe, clergy aren’t safe, activists aren’t safe – nobody is safe.”
Fein also champions civil liberties, but from the opposite side of the political spectrum. A lawyer and constitutional attorney, Fein served in the Reagan Justice Department. He echoed Wolf’s warning, pointing out the Sen. Lindsey Graham said the NDAA would bring the battlefield from abroad into the United States.
“Just think about that. How many times did we hear from the neo-cons that we had to fight in Afghanistan, Pakistan, Yemen and elsewhere? We had to fight six, seven, eight thousand miles away to prevent fighting these terrorists at home. Now we have Lindsey Graham, who is probably the greatest megaphone on that point, and now saying; ‘Now the battlefield is at home.’”
Fein pointed out that Congress passed the detention provisions in the NDAA without any public outcry demanding Congress grant the president additional powers, no plea for protection, no demonstrations in the streets asking for it and very little support for such powers outside of the ruling class.
“And yet President Obama signed it with his infamous statement, ‘I’ll only use it on the bad people.’ How many times have we heard that? Now we have a rule of men rather than a rule of law.”
Fein called it the ultimate corruption of due process and everything that America stands for.
“We’ve turned into the mirror image of King George the Third or worse,” he said. “Just think of that. We now are worse than the tyranny we fought to establish our birth certificate in 1776.”
Wolf and Fein both called on Congress to repeal the detention provisions, but Wolf in particular expressed frustration with the political climate on Capitol Hill.
“Democracy isn’t working the way it’s supposed to right now. You know, there’s this massive, massive transpartisan outpouring of citizen horror at this legislation,” she said. “It isn’t moving the dial. So I’m just saying on the record, I’m entirely baffled because it doesn’t seem as if the usual forms of citizen pressure that should be initiating – I mean this is a winner.”
Washington State Rep. Matt Shea said that since the federal government won’t limit its own power, the responsibility falls upon the shoulders of state and local officials, pointing out they swear an oath to protect and defend both the United States Constitution and their state constitutions.
“That means in these types of cases, where something is very clearly unconstitutional, and we believe the unlawful and indefinite detention provision of the NDAA is unconstitutional, it is our duty not to comply.”
To that end Shea, along with fellow Republican Rep. Jason Overstreet and three other lawmakers, introduced HB 2759. The act condemns unlawful detention of United States citizens and lawful resident aliens under the National Defense Authorization Act, and forbids “any state employee, member of the Washington National Guard or any agent of a corporation doing business with the state” to cooperate in the federal detainment or investigation of a U.S. citizen or resident alien.
Shea said legal analysts found at least 11 violations of the U.S. Constitution and 13 violations of the Washington State Constitution in sections 1021 and 1022 of the NDAA, and he said he found it difficult to understand how the men and women in Congress, with a few exceptions, didn’t see it. He went on to assert that since Washington seems oblivious and unresponsive, state level action becomes imperative.
“Very clearly, this needs to be a state level issue. I think very clearly this is a Tenth Amendment issue,” Shea said. “Our bill, House Bill 2759 in Washington, is not a non-binding resolution. It would actually be a law that would prohibit any government official, from the National Guard on down to local law enforcement, from participating in any way, shape or form, for implementing the unlawful and indefinite detention provisions of the NDAA. So I think that’s really where it needs to start is the state level.”
Washington lawmakers join legislatures in six other states considering bills in opposition to NDAA detention. Last week, the Virginia House of Delegates overwhelmingly passed its version of the legislation 96-4.
North Carolina State Sen. Ellie Kinnaird says lawmakers in the Tar Heel State continue to look at ways to combat NDAA, despite procedural hurdles in their legislature.
“There’s a very activist community in our area, very alarmed over this,” the Democratic lawmaker said. “What I will do is try to find a way to bring this to our legislature in a form that will tell our legislative delegation that we feel that this country is really threatened.”
Local officials have also joined the battle. In fact, El Paso County, Colo. Board of County Commissioners was the first government body to denounce NDAA detention without due process. The commission passed the resolution before Pres. Obama even signed the act into law. The El Paso County Sheriff’s Department also supports the resolution, providing teeth should an actual attempt to detain a person in the county arise.
“I felt it incumbent on us to be proactive, and I had no idea we were going to be the vanguard,” commissioner Peggy Littleton (R) said.
The El Paso County resolution asserts that NDAA detention and other civil liberty crushing acts in the name of the “War on Terror” hands victory to the enemy.
“Undermining our own constitutional rights serves only to concede to the terrorist demands of changing the fabric of what made the United States of America a country of freedom, liberty and opportunity.”
Six other local governments have also passed resolutions opposing sections 1021 and 1022 of the NDAA. Most recently, the Northampton, Mass. city council unanimously passed its version. Counselor Bill Dwight (D) said the body discussed the value of a small town of 29,000 passing such a resolution, asking, what difference will it make?
“The argument that we advanced was that we’re witnessing, essentially, an easy accommodation of the death of a thousand cuts of the Bill of Rights. The Bill of Rights actually affects the 29,000 people who live in this city, who dwell in this city. That’s our province. These are the people we were elected to represent,” he said. “And then we spoke with a unified voice and said, ‘This is unacceptable.’”
Dwight lamented that we have “made this easy accommodation” and the fact that we have by-and-large allowed fear to manipulate us.
“We’ve reacted contrary to our oaths, as Matt Shea said. I mean, our first oath of office is to protect the Constitution of our states and the Constitution of the United States. And we have no greater obligation beyond, you know, fixing potholes and all the other sundry things we’re assigned to do, we have no greater obligation, no higher calling than to protect the Constitution, which is clearly in jeopardy.”
Dwight said he hopes other cities and counties will join his town’s admittedly small effort and come together to create a larger movement.
“Northampton originally stood…I believe the first community in the United States to stand up against the tenants of the U.S. A. Patriot Act. And at the time, it seemed like just a little, teeny whining sound from the little spot in Northampton, Massachusetts. But it actually snowballed, and communities all over the country, including large cities like Los Angles and New York and Chicago, followed our lead. We hope that’s replicated, and we hope that’s reflected in the pressure that we’re trying to exert here.”
Overstreet reflected Dwight’s faith in the ability of state and local governments to initiated change, despite the unlikelihood of Washington simply relinquishing power it now has within its grasp. But he added that garnering support and educating people who don’t fully comprehend the issue and the danger is imperative.
“They may not understand it, which is why resolutions starting at the local level are so important, on up to the county level and then to the state level. That’s how we create a critical mass,” he said.
Fein said facing down the threat of NDAA detention goes beyond that single issue, placing it in the context of a larger battle for freedom and liberty in the United States.
“The NDAA is part of this larger culture of seeking a risk-free existence by destroying freedom and liberty everywhere. And having juvenile thrill of a nation able to tell anybody anytime, anyplace that they’ve got to do whatever the United States tells them to do at the point of a bayonet, or at the end of a Predator Drone. It’s really quite disgusting and wretched.”
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.
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