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Happy Birthday Bill of Rights It was Nice Knowing You...
The Bill of Rights is 220 years old today having come into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States. Over the past few weeks I have been trying to draw attention, as have others, to the issue of the indefinite detention of Americans contained within the National Defense Authorization Act. Those opposed to this act have failed to force a national debate on this issue critical to our civil liberties.
This morning I spoke to a staffer in Congressman Ander Crenshaw's office. He dutifully touted the party line that there is nothing to worry about. When I asked him about some of the provisions of the bill he had no answer other than to say that if the President goes too far the Supreme Court can stop him. To this I asked him what will happen if Obama wins re-election and gets to appoint two new justices who interpret the bill in question the way he does. You could literally hear the cogs in his brain grind to a halt as if the staff had never considered that Obama may win re-election.
Section 1021 of the FY 2012 National Defense Authorization Act
Page 656 states: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”
What is "required" is NOT the same as what is allowable. Just because the government is not required to do something does not mean that they are prohibited from doing it. These laws are written by lawyers, and having been blessed or cursed with a legal education, sometimes I don't know which, I have been trained to dissect each and every word of a law to explore the nuances of the language and all possible meanings that a word can be given. What may seem apparent to a lay person will be used as fodder by some government lawyer advising this or some future president about what is permissible under this law.
Page 655:states, “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”
The problem with this section is that the existing law is not settled, as the Bush administration gave up certain legal arguments before the Supreme court could decide the issue, leaving it up to the executive to decide how existing law should be interpreted. And how about this. The law says it applies to forces "affiliated with Al-Qaeda." What in the hell does affiliated mean? Once again it is a weasel word used by lawyers and meant to be intentionally vague so as to allow for the broadest possible interpretation.
Al-Qaeda obviously is at war with the U.S. and it wants to see it harmed in any way possible Now suppose a Tea Party or an Occupy Wall Street member blows up a government building or kills a politician. An argument can then be made that they are "affiliated" with Al-Qaeda since the end goal, damaging the U.S. is the same. Does the government now get to detain indefinitely these citizens without due process of law? If you think this is far fetched think again. We all know the law of unintended consequences, although in this case I think the politicians who support this bill know exactly what they are doing or are otherwise so stupid as to be unfit for office.
We were told by the proponents of the Iraq war that the Islamists hate us for our freedom. So after ten years of war, which supposedly ended yesterday, I ask the question, "who won?" Did they or did we? For ten years we have given up our liberties in exchange for security, turning more and more power over to the federal government. It is sad and ironic that on the birthday of the Bill of Rights, there is so little left to celebrate.
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Comment by Fred Gottshalk on December 31, 2011 at 8:34pm
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"trying to finish their work before we can stop them". I TAKE SERIOUS OFFENSE TO THIS DEFEATIST ATTITUDE. The American Spirit is and always will be ALIVE AND WELL; because the Holy Spirit lives in us. WE CAN ALWAYS STOP THEM, WHEN THE 'SPIRIT' IS AWAKENED. The 'sleeping eagle' is awake and is soaring, once again, high above America. Tell the 'progressives' that they have NEVER seen the American Spirit at work. May God have mercy on their souls-I cannot have mercy on them, fore I am not God!! I would sooner die fighting, than to lick the boots of my oppressor. We all know what those boots have stepped in!
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This was quite a discussion-thanks to all who participated.
M. Clarke
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Comment by amanda choate on December 18, 2011 at 6:58pm
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Only 13 senators saw fit to vote against this bill. No citizen may ever be detained under this law. But no citizen should ever be placed in jeopardy under it either.
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Yesterday, the Senate passed a bill that includes provisions on detention that I found simply unacceptable. These provisions are inconsistent with the liberties and freedoms that are at the core of the system our Founders established. And while I did in fact vote for an earlier version of the legislation, I did so with the hope that the final version would be significantly improved. That didn't happen, and so I could not support the final bill.
The bill that passed on Thursday included several problematic provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they're captured in the U.S.
At their core, these provisions will radically alter how we investigate, arrest, and detain individuals suspected of terrorism. What's more, they could undermine the safety of our troops stationed abroad, and they introduce new and unnecessary uncertainty into our counterterrorism efforts.
But before I get into the details of why I opposed these detainee provisions, I think it is important to recognize that September 11th irrevocably and unalterably changed our lives. I was in Minnesota that terrible day. A number of Minnesotans died -- in the towers, in the air, and at the Pentagon. In New York in the months following the attacks, I attended the funerals of brave firefighters and law enforcement officers who sacrificed their lives to help rescue Americans from the towers. I can't shake those images from my mind, and I am guessing like many of you, I won't ever be able to erase the horrors of September 11th from my head.
But it is exactly in these difficult moments, in these periods of war, when our country is under attack, that we must be doubly vigilant about protecting what makes us Americans.
The Founders who crafted our Constitution and Bill of Rights were careful to draft a Constitution of limited powers -- one that would protect Americans' liberty at all times -- both in war, and in peace.
As we reflect on what this bill will do, I think it is important to pause and remember some of the mistakes this country has made when we have been fearful of enemy attack.
Most notably, we made a grave, indefensible mistake during World War II, when President Roosevelt ordered the incarceration of more than 110,000 people of Japanese origin, as well as approximately 11,000 German-Americans and 3,000 Italian-Americans.
In 1971, President Richard Nixon signed into law the Non-Detention Act to make sure the U.S. government would never again subject any Americans to the unnecessary and unjustifiable imprisonment that so many Japanese-Americans, German-Americans, and Italian-Americans had to endure. It wasn't until 1988, 46 years after the internment, when President Reagan signed the Civil Liberties Act, that the government formally acknowledged and apologized for the grave injustice that was done to citizens and permanent residents of Japanese ancestry.
These were dark, dark periods in American history. And it is easy today to think that is all behind us.
But I fear the detention provisions in the bill forget the lessons we learned from the mistakes we made when we interned thousands of innocent Japanese, Germans, and Italians.
With this defense authorization act, Congress will, for the first time in 60 years, authorize the indefinite detention of U.S. citizens without charge or trial, according to its advocates. This would be the first time that Congress has deviated from President Nixon's Non-Detention Act. And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.
I think that denigrates the very foundations of this country. I
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The point is well taken, that certain laws, once passed, become like pyramids that grow from a broad base into different forms, in time. A case in point is the Racketeer Influenced and Corrupt Organizations Act-better known as the RICO Act. Initially, this law was intended to deal with the Mafia and organized crime, but it later expanded into other types of crimes, giving the federal government very broad powers in certain situations. On the other hand, this National Defence Act seems to be very narrowly written, and although it is not impossible to see some future attempt to broaden it or to use it against American citizens, the political consequences of such an action could be devastating to whoever tries it.
We are a Republic in which the people elect our representatives in all branches of government, except the Supreme Court. As laws are passed, we need to be alert to their intent, but we also need to trust those whom we elected to do what is right for the people. If we do not have faith in our constitutional system, then we have nothing, just plain and pure anarchy.
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The military is against this. The White House said it was against it. The Tea Party, ACLU, US Attorney General, Cato, Heritage, Brookings. Everyone was against it, yet it passed. That is the scary part. No ammount of resistance seemed to matter. Who was for it? Why?
It is the danger of a place like Guantanamo. It creates a legal blackhole, where the protection of liberty supercedes actual liberty. No habeus, indetermined imprisonment. At first I thought this was much ado about nothing. But the fact that it passed with no support is troubling to say the least.
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Comment by Peggy Hall on December 16, 2011 at 11:21am
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Great post Cord. Thank you for your effort with Crenshaw's office.
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