Guest Post - "Trampling The Bill of Rights"
I think we can all agree that this best thing about this site is the collective knowledge and wisdom of its members. As such, last week I commissioned "CaliforniaLawyer" to research and author a "guest post" that would deal with the travesty and threat that is the 2012 National Defense Authorization Act. Fortunately for us, he obliged and his work is presented below.
"All Hail King Obama [Gingrich, Romney, et al.] - New National Defense Authorization Act Renders Constitutional Bill of Rights Mere “Tradition”
Is anyone concerned about the lawlessness and unconstitutionality of the movement to grant the President the power to detain, without trial or representation or due process of law, any citizen that is capriciously perceived to represent a threat to the United States?
Mr. Ferguson is. I am. I know you are, too.
Let’s get right to the issue. The authors of this bill claim that the bill would not enlarge the universe of detainees eligible for indefinite detention in military custody. FALSE. The current Authorization for Use of Military Force, that is, the OLD LAW, confines the universe to persons implicated in the 9/11 attacks or who harbored those who were. The detainee provision in the NEW LAW would expand the universe to include any person said to be “part of” or “substantially” supportive of al-Qaida or Taliban.
These terms are dangerously vague. We all know how politicians like things to be vague . . . [“It depends on what the definition of is, is?”].
Remember, more than a decade after 9/11, the military has STILL been unable to define the earmarks of membership in or affiliation to either organization. War mongers argue that to prevent another 9/11 attack the USA must fight terrorism with a war mentality and not treat potential attackers as criminals. That works on the battlefield, as many have argued, but do we want to define the United States itself as a battlefield, and endure a perpetual military state?
Remember, too: the Defense Department withheld intelligence from the FBI. No warrants were denied. The warrants were not requested. The FBI failed to act on repeated pleas from its field agents, agents who were in possession of laptop that contained information that some argue might have prevented 9/11.
As Rand Paul recently said: “These are not failures of laws. They are not failures of procedures. They are failures of imperfect men and women in bloated bureaucracies. No amount of liberty sacrificed on the altar of the state will ever change that.”
“We should not have to sacrifice our Liberty to be safe. We cannot allow the rules to change to fit the whims of those in power. The rules, the binding chains of our constitution were written so that it didn’t MATTER who was in power. In fact, they were written to protect us and our rights, from those who hold power without good intentions. We are not governed by saints or angels. Our constitution allows for that.”
Look, I hate politicians as much if not more than the rest of you. But, what Rand Paul said above, is true, and compelling. I wanted to make sure I properly attributed his words to him, but I wish I created them myself.
Imperfect men and women in bloated bureaucracies, classic. Think about it: FBI, DOD, SEC, CFTC, BMF [hattip, Cheech and Chong!]. Do we really want more government intrusion?
This bill also has a nefarious, far-reaching grasp over ALL OF US: the detainee provisions imply perpetual war. Think about the US income tax. It was originally just for the 1%, and was to be temporary. http://en.wikipedia.org/wiki/Income_tax_in_the_United_States#History
This new law WILL NOT BE TEMPORARY AT ALL. There is no objective measure, or benchmarks in the law which would ever terminate the conflict with al-Qaida, Taliban, or other foreign terrorist organizations. There is no provision at all to explicitly or implicitly restrict the authorization to use force. No congressional review is allowed or imagined. No victory is defined. In short, there is no definition of victory. How convenient!
How can peace be possible if victory is made impossible by definition? Permanent conflict. War-mongering. Government intrusion, detention, abolition of freedoms. It is all there in black and white.
The detainee provisions have no expiration. Is that not all one needs to hear to have the proverbial chill run down one’s spine?
Let’s examine this, then, in a not-too-terribly-scholarly way, okay, and see if we can do something about it?
U.S. Constitution Bill of Rights - here: http://en.wikipedia.org/wiki/United_States_Bill_of_Rights
Remember long ago, in eighth grade, studying the Constitution? Yeah, that tired old governing document that has managed to keep this country going for over 200 years. Remember too the big debate among the early Americans, about building some protections into the Constitution? The Bill of Rights is what emerged, and importantly, has served to protect Americans from tyranny, like that which was practiced upon the settlers, and which the founders of this great nation determined to prohibit. [From the Preamble: “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
The list, for those who may need a “refresher,” so to speak is here: http://en.wikipedia.org/wiki/List_of_amendments_to_the_United_States_Constitution
1st Amendment: Protects the freedom of religion, speech, and the press, as well as the right to assemble and petition the government;
2nd: Protects the right to bear arms;
3rd: Prohibits the forced quartering of soldiers out of war time;
4th: Prohibits unreasonable searches and seizures and sets out requirements for search warrants based on probable cause;
5th: Sets out rules for indictment by grand jury and eminent domain, protects the right to due process, and prohibits self-incrimination and double jeopardy;
6th: Protects the right to a fair and speedy public trial by jury, including the rights to be notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel;
7th: Provides for the right to trial by jury in certain civil cases, according to common law [my favorite, a Constitutional job description for me! Yaaayyy!];
8th: Prohibits excessive fines and excessive bail, as well as cruel and unusual punishment;
9th: Asserts the existence of unenumerated rights retained by the people;
10th: Limits the powers of the federal government to those delegated to it by the Constitution.
These were extended to apply to the States in the 1890's by the 14th Amendment. http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
So, there is the basic protection for citizens, against the tyranny of the government. In essence, remember, all the freedoms are inherent in individuals, and the government is granted LIMITED powers, expressly set forth in the Constitution, and further clarified in the Bill of Rights. So, the federal government CANNOT do things unless the Constitution and Bill of Rights allows it.
The Patriot Act: http://en.wikipedia.org/wiki/USA_PATRIOT_Act
Well, that seemed to work for quite awhile, until there was this little thing called 9/11. Whether one believes it was premeditated, conspiratorial, or the act of terrorists, the outcome of that fateful day ushered in the now infamous Patriot Act.
“The act, a response to the terrorist attacks of September 11th, dramatically reduced restrictions on law enforcement agencies' ability to search telephone, e-mail communications, medical, financial, and other records; eased restrictions on foreign intelligence gathering within the United States; expanded the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadened the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.” From here: http://en.wikipedia.org/wiki/USA_PATRIOT_Act
At once, Americans began to lose long-cherished freedoms, as the Patriot Act began eroding the Bill of Rights. Great law review article, here:
The changes were all about “national security,” an open-ended power grab by the federal government.
A wizard legal commentator wrote a detailed article setting forth all the new restrictions on freedoms. Look at all the new expansions of federal government powers, and the erosion of individual freedoms:
Here is the Table of Contents to the in-depth article:
The Newly-Created Legal Framework
Centralization of Law Enforcement Powers in the Justice Department
CIA Oversight of Domestic Intelligence Gathering
Expanding the Scope of “Terrorism” and “Domestic Terrorism”
Disregard of the Constitutional Rights of Resident Non-Citizens
The First Amendment Rights of Free Speech and Association
Prosecution Under the Sedition Act of 1918
Exclusion of Non-Citizens Accused of “Endorsing” Terrorism
“Gagging” Businesses Subjected to Federal Searches
The Attorney General's View of Civil Libertarians Who Oppose Him
The Fourth Amendment Freedom from Unreasonable Search and Seizure
Expansion of Searches Under the Foreign Intelligence Surveillance Act
Sections 206 and 207: Roving FISA Wiretaps
Sections 214 and 216: FISA Pen Register and “Trap and Trace” Orders
Section 215: Business Records Seizures Allowed Under FISA
Sections 201 and 202: Expanding the Scope of the Wiretap Act
Section 203b: Information Disclosed to CIA and Other Intelligence Agencies
Sections 209 and 210: Voice Mail, Internet, and Telephone Monitoring
Section 213: “Sneak and Peek” Warrants
The Fifth Amendment Right to Indictment by a Grand Jury
Ending the Historic Secrecy of Grand Juries
Elimination of the Right to Indictment by Grand Jury for Non-Citizens Accused of “Terrorism”
The Sixth Amendment Right to Counsel
Monitoring Attorney-Client Conversations
Refusing Suspects Access to Counsel and Discouraging Detainees from Obtaining Legal Counsel
Military Tribunals: The Sixth Amendment Right to Trial by Jury
The Fifth Amendment Right to Due Process of Law
Section 412: Indefinite Detention of Non-Citizens Without Due Process
Section 106: Seizure of Assets Without Due Process
The Constitutional Right to Privacy
Sections 355 and 356: Monitoring and Reporting on Citizen Financial Transactions
Section 358: Amending the Federal Privacy Statute to Allow Disclosure of Banking Records for “Financial Analysis”
Section 507: Required Disclosure of Educational Records
Building Biometric Databases of Citizens
Go dig in, and dig deep. The groundwork for removing freedoms began long ago, as this article notes. Is anyone starting to get a little concerned, that the powers of the federal government have taken on a more sinister tone?
Indefinite detentions of non-citizens without due process? Seizure of assets without due process? Say what?
For those of you who need a brief refresher on “Due Process,” let me help, briefly. Due Process means that the government CANNOT just imprison you, or take your stuff, without first following the rule of law. Here: http://en.wikipedia.org/wiki/Due_process
For example, if you get a speeding ticket, you get the chance to go to court and prove your case. If you are arrested, you are supposed to be charged with a crime, and promptly brought before a judge. There are procedural steps that the government must take, before depriving you of property or liberty. These are the hallmarks of the American way. Despite the Bill of Rights guarantee of all sorts of protections, the Patriot Act simply strips them away. Now this new law will further erode the freedoms. Are you starting to get it?
The New National Defense Authorization Act
The current state of this pending law is here: http://armedservices.house.gov/index.cfm/ndaa-home?p=ndaa
What is the big uproar? The law is a massive, unconstitutional power grab: it allows military detention of American citizens, without trial and indefinitely.
Did you read that? Military detention of American citizens, without trial, indefinitely.
Can you envision the scenario: 1:00 a.m., Anytown, USA. Fifteen or twenty military/police/swat/revenue agent/dog catcher/meter maids, heavily armed, wearing black uniforms bearing the Department of Homeland Terrorist Prevention [DHATIP] logo, storm Joe Citizen’s suburban home, confiscate his computers, safes, firearms, and precious metals, and haul Joe to an undisclosed detention facility. A spokesman for DHATIP states that Joe is a domestic terrorist, because he was found to have posted comments on zerohedge, and the uber-radical TF Metals Report blog. Joe threatened and advocated the overthrow of the US Government by advising citizens to withdraw fiat currency out of the too big too fail banking system, and acquire physical silver and gold. Such comments are illegal terrorist threats, which comments urge the downfall of the US banking system. As was recently enacted by the Defense Authorization Bill, Chairman Bernanke promulgated rules prohibiting the withdrawal of fiat from any banking institution, and also prohibited possession of physical silver and gold. Joe is being held indefinitely in a secure facility pending further investigation.
Think that is too far-fetched?
If you want to read article after article, go here for a google news search, and get into as much details as you want. google news search: here: https://www.google.com/search?hl=en&gl=us&tbm=nws&btnmeta_news_search=1&q=national+defense+authorization+act&oq=national+defense+authorization+act&aq=f&aqi=d1d-o1&aql=&gs_sm=e&gs_upl=1078l8822l0l8964l34l32l0l23l23l2l229l1630l0.7.2l9l0
Freedom is disappearing. Plenty of legal heavyweights have sounded off about the very real dangers this law poses. Some great articles are here: http://www.themoralliberal.com/2011/12/05/defense-authorization-bill-still-savages-the-constitution/
Rand Paul, a lone beacon, has weighed in, go listen, or read the transcript, embedded here:
Rand Paul said: “Th[is] legislation would arm the military with the authority to detain indefinitely – without due process or trial – suspected al-Qaida sympathizers, including American citizens apprehended on American soil. I want to repeat that. We are talking about people who are merely SUSPECTED of a crime. And we are talking about American citizens. If these provisions pass, we could see American citizens being sent to Guantanamo Bay. This should be alarming to everyone watching this proceeding today. Because it puts every single American citizen at risk.”
Note how there was less debate about this dramatic theft of freedoms, than the circus-show that surrounded the increase of the debt ceiling? The federal government is expanding out of control, and our way of life is fading away.
Look at the legalese and mumbo jumbo which allows for further, warrantless detention and imprisonment. Comparing the two versions of the Bill, that from prior to passage and that which was amended and ultimately passed the Senate, shows that the measure still seems to apply to American citizens rather than exempting them as Levin claims.
In its original form, the Bill specified that “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”
However, though the language may not “require” military detention of American civilians without trial, it does not rule it out of bounds either.
This language was added: “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.” But, ask yourself, “Would this language provide any protection to an American citizen?”
As some have noted: “This bill puts military detention authority on steroids and makes it permanent . . . . If it becomes law, American citizens and others are at real risk of being locked away by the military without charge or trial.”
Some courageous people have taken a stand. Senator Mike Lee of Utah, a Republican, did vote against the measure. A “person can’t be held and tried for a crime without having counsel made available to them, and without the opportunity for a speedy trial in front of a jury of the peers of the accused.,” Lee said in a statement. “We can scarce afford as Americans to surrender these fundamental civil liberties for which wars have been fought, for which the founding era, the founding generation fought so nobly against our mother country to establish and thereafter to protect.”
Continuing his remarks, Senator Lee said: “We have to support these and I think at a bare minimum that means that we won’t allow U. S. military personnel to arrest and indefinitely detain U.S. citizens regardless of what label we happen to apply to them. These people as U.S. citizens are entitled to a grand jury indictment to the extent they’re being held for an infamous crime, they’re also entitled to a jury trial in front of their peers and to counsel.”
Senator Lee was one of seven Senators who stood up for the Bill of Rights and the freedoms of all Americans by voting against S.1867. The others were Senator Tom Coburn (R-OK), Senator Tom Harkin (D-IA), Senator Jeff Merkley (D-OR), Senator Rand Paul (R-KY), Senator Bernie Sanders (I-VT), and Senator Ron Wyden (D-OR).
In his explanation for why he voted against the Bill, Senator Wyden said:
“The Obama Administration has said that passing this bill ‘would be inconsistent with the fundamental American principle that our military does not patrol our streets,’” Wyden noted. “I agree with the Administration’s assessment of this bill, and I hope the President will follow through on his threat to veto it.”
Other commentators agree. Here is John Whitehead, again, a real patriot.
“America's so-called war on terror, which it has relentlessly pursued for the past ten years, has forever altered the political and legal landscape of our country. It has chipped away at our freedoms and is unraveling our Constitution. Even now, with Osama bin Laden having been killed and al Qaeda dismantled by a series of high-profile assassinations, the war hawks continue to rattle their sabers. Yet while more and more Americans join the call for a de-escalation of military actions abroad, those clamoring for war have turned their focus inwards. As Senator Lindsay Graham recently remarked as an explanation for his support of legislation allowing for the indefinite detention of Americans, "Is the homeland the battlefield? You better believe it is the battlefield." Whose side is he on? See how labels lead to loss of freedoms. It matters not whether one is labeled a democrat, or republican. The issue is loss of liberty, and your favorite politician does not have your interests at heart.
America has indeed become the new battleground in the war on terror. In light of this, you can rest assured that there will be no restoration of the civil liberties jeopardized by the USA Patriot Act and other equally subversive legislation. Instead, those in power will continue to sanction ongoing violations of our rights, relying on bureaucratic legalese to sidestep any concerns that might be raised. The National Defense Authorization Act of 2012, which was passed by the Senate with a vote of 93 - 7, is a perfect example of this. Contained within this massive defense bill is a provision crafted by Democrat Charles Levin and Republican John McCain which mandates that anyone suspected of terrorism against the United States be held in military custody indefinitely. This provision extends to American citizens on American territory. The bill also renews the Authorization to Use Military Force (AUMF) which was passed in 2001, shortly after the 9/11 attacks. In addition to renewing the AUMF, it extends its provisions to include military action against those who "substantially support" al Qaeda, the Taliban or "associated forces." And to cap it off, the bill enhances restrictions against transferring detainees being held in Guantanamo Bay to the continental United States.
Taken collectively, these provisions reorient our legal landscape in such a way as to ensure that martial law, rather than the rule of law -- our U.S. Constitution, becomes the map by which we navigate life in the United States. In short, this defense bill not only decimates the due process of law and habeas corpus for anyone perceived to be an enemy of the United States, but it radically expands the definition of who may be considered the legitimate target of military action. If signed into law by President Obama, this bill will not only ensure that we remain in a perpetual state of war -- with this being a war against the American people -- but it will also institute de facto martial law in the United States. Although the 1878 Posse Comitatus Act placed strong restrictions on how and when the U.S. military may be used on American soil, the language of this bill supersedes Posse Comitatus, empowering the president to unilaterally impose martial law at any time of his choosing. This legislation signals the end of the rule of law in America.”
So, why is this being foisted upon us, now? Why are there provisions for institution of martial law? Existing laws and government procedures already address all contingencies for handling any actual enemies of the United States.
The judicial branch is no friend of the individual citizen, either. The courts have all ruled that it's a prerogative of the president, not the judiciary, to determine how enemies of the United States will be treated in custody and what type of trial they will receive, if any.
Look what Congress has done to erode freedoms, in just the past decade:
-the invasion of Iraq with only the flimsiest, and now discredited evidentiary basis;
-the use of waterboarding against detainees at Guantanamo Bay;
-the torturing of prisoners at Abu Ghraib;
-the installation of body scanners in American airports and unconstitutional searches; and
-the authorization of government agencies spying on Americans.
If the bill is signed into law as it currently exists, anyone (including Americans) in any part of the world (including the United States) who is "suspected" of terrorism may be detained indefinitely and without trial by the United States military.
How can we stop this juggernaut?
The defense bill has passed the Senate, but must still be reconciled with the House of Representatives' version. There is a possibility that the offending provisions could be deleted, or that Obama will veto the bill.
Get on the phone, email, fax, and get your elected official to hear your outcry!
Or else, don’t be those that complain when the government agents come knocking in the dead of night.