"America is like a healthy body and its resistance is threefold: its patriotism, its morality, and its spiritual life. If we can undermine these three areas, America will collapse from within."
--Joseph Stalin

Saturday, December 17, 2011

The Liberty We Are Allowing to Slip Through Our Fingers

Will Malven

I am not one of those alarmist types who sees a threat to our liberty and freedom every time the winds of congressional whimsy lead to the passing of a conceivably dubious law, but I am joining in with those who are shouting from the rooftops today:


The FY 2012 National Defense Authorization Act which passed the House yesterday (283-136) and now, the Senate by a horrifying 86-13 margin, may be the biggest blow to our Bill of Rights in the history of the Republic.
Interestingly enough, the Senate passed this bill on the 210th anniversary of the ratification of the Bill of Rights.
My protest here is moot now as the bill moves to the desk of President Obama for signing--which he will most certainly do as it appears to grant him and the military unheard of authority to indefinitely detain U.S. Citizens without any of their inherent rights to due process.

Hidden down in Title X-General Provision, Subtitle D Counterterrorism, Sections 1021-1034, which cover the arrest and handling of "enemy combatants" and those who have been incarcerated at the Guantanamo Bay Detention Facility is the following two sections both of which are disturbing in their expansive grant of power to the President and their lack of any protections for our citizens.
  1. IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
  2. COVERED PERSONS.—A covered person under this section is any person as follows:
    1. A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
    2. 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
  3. DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:
    1. Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
    2. Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).
    3. Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
    4. Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
  4. CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
  5. AUTHORITIES.—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.
  6. REQUIREMENT FOR BRIEFINGS OF CONGRESS.—The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).
Congress affirms that—
  1. the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
  2. the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
  3. the current armed conflict includes nations, organization, and persons who—
    1. are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
    2. have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in sub-paragraph (A); and
  4. (4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.
You will note that there is NO exclusion of U.S. Citizens in this wording.

You will also note that it leaves to the discretion of the President to designate those "persons who--" in #3.

This omission, if indeed it was an "omission," has been the source of much consternation by civil libertarians, not all of whom have been liberals. Yes, the ACLU has objected to the bill, but so have many conservative parties.  Anyone who holds our liberties dearly must be concerned by the passage of this bill.

"Relax," we are told by those Republican's in Congress, "there is an exemption of the 'requirement' for American Citizens." In fact, the House Armed Services Committee published a "fact sheet" that highlights that language.
REQUIREMENT FOR MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS. In cases such as the Christmas Day Bomber, where a foreign terrorist is caught in a plot to attack the United States, establishes a new requirement for military custody. This provision only applies to individuals who are part of, or substantially supporting, Al Qaeda or associated forces AND have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners. It is vital that terrorists bent on waging war against American freedom are treated according to the laws of war, not treated like simple criminals.
  • Provides a waiver for the Secretary of Defense when such a requirement is not in the national security interests of the United States.
  • Facilitates greater intelligence gathering from foreign terrorists.
  • Explicitly exempts U.S. citizens from the requirement.
The AP reported on Wednesday:
Specifically, the bill would require that the military take custody of a suspect deemed to be a member of al-Qaida or its affiliates and who is involved in plotting or committing attacks on the United States. There is an exemption for U.S. citizens.
So, you ask, what's the problem? After all, they say there is an exemption for American citizens in residence . . . problem is, that is not true.

Senator Carl Levin, in the well of the Senate stated that the section which specifically precluded applying such protections was removed from the bill "AT THE REQUEST OF THE ADMINISTRATION" (as can be seen in this video).

Under any circumstances, this would be "concerning," but in an administration whose DHS has issued bulletins identifying such "rightwing" threats as "returning veterans" and using such ambiguous terms as “antigovernment,” “hate-oriented,” “paranoid,” “dangerous,” it becomes terrifying.

In the Obama Administration's own Department of Homeland Security bulletin, one finds in this statement:
Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.
Get it? American citizens are the enemy.  Not just "rightwing" extremism, but all strongly motivated political groups, be they "rightwing," or leftwing, can be classified by exactly the same language.

Should we all not be nervous when an administration which sees nothing improper about targeting one segment of our citizenry as "dangerous" and "a terrorist threat" then later explicitly requests that language protecting our citizens from arbitrary, warrantless detention by the military or civilian authorities be removed prior it's passing and being sent up to the President?

One of my favorite "go to" websites for understanding of legal documents and legislative actions, is the Volokh Conspiracy, a website frequented by legal experts, law professors, judges and those who are simply interested in legal issues. The point is that you get some very knowledgeable sources analyzing various legal issues. Of specific interest to this thread is the discussion which was begun November 30, 2011.

Defense bill will allow President to indefinitely detain American citizens
by David Kopel

The individual identified as "Steve" essays to explain why the claimed "exemption" in the bill is not exemption at all. Steve says:
The blog you linked cites section 1032: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” The blogger thinks this is game, set and match that the issue has been overblown, but he is wrong because section 1032 actually addresses something different. The key word in that quote is the word “requirement.” In addition to giving the President the AUTHORITY to detain terrorist suspects in military custody, section 1032 says the President is REQUIRED to keep any such person who is captured in the course of hostilities in military custody. In other words, this is designed to prohibit people like the Guantanamo detainees from being transferred to civilian custody. So the quoted language simply says, if the person we’re talking about is an American citizen, the “requirement” of military custody no longer applies and it is up to the President whether to commit him to military or civilian custody.
So, there you have it, the only "protection" provided by that language is that there is no "requirement" for the military to be the sole custodians of such prisoners. Citizens in residence can still be held, they can be held by the military, or they can be transferred to civilian holding facilities.

If you have any doubts as to the arbitrariness of these laws, look at the Uyghurs who were held at Guantanamo from the time of their capture in 2002 until they were granted habeus corpus in 2008 and five of whom remain in detention today. They were fighting for their rights against China, not against American troops nor Afghan troops, yet they were designated an "associated group" and held at Guantanamo solely because they were being trained by the Taliban.

Note further that this law allows for the:
"Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."
That, folks, is an open-ended authorization, which means that even U.S. Citizens can be held indefinitely without trial, or formal judicial hearing--no judge, no habeus corpus.

A U.S. citizen who donates to a charitable organization  which later becomes radicalized and is identified by the President as one of those covered organizations, could subsequently be identified as having given "substantial aid" to a terrorist organization and zipped off to prison with no recourse. Or perhaps a blogger (a subject near and dear to my heart) who dares to criticize our government and perhaps in the course of doing so praises some "suspect organization" is suddenly declared as having given "substantial support" to a "terrorist organization" and could suddenly find himself imprisoned, without recourse of counsel or even knowing why he has been arrested.

It is a slippery slope down which our members of Congress have led us.

It is one thing to have a President, like FDR or Bush arbitrarily pull a Korematsu, Ex Parte Quirin, or a Padilla and be willing to brave the rebuke of the Supreme Court, but it is an entirely different matter for Congress to put its imprimatur on such actions. Does this not add weight to any subsequent government's argument justifying its actions?

Admittedly, I am talking worst case scenario, but isn't that precisely what our Founding Fathers sought to warn us against?  As Benjamin Franklin admonished us:
"They who can give up essential liberty to obtain a little temporary safety, deserve neither."
Our nation prides itself on elevating individual liberty and freedom above the interests of the state. We stand as a "shining city on the hill," a beacon of freedom in a world of nations which, historically, have proven themselves hesitant to allow their citizens the rights which we Americans have enjoyed since our nation's inception.

We revel in the fact that our citizens enjoy "unalienable" rights, rights which, not only cannot be taken from them, but which are so inherent to their being that they cannot even be surrendered voluntarily (see "inalienable" vs. "unalienable").

Now, as with many of the limitations on the power of our government our Founding Fathers wrote into the Constitution and that have now been ignored or exceeded, the protections they saw fit to include in the Bill of Rights, those specific proscriptions aimed at further limiting its power, are being eroded.

Ill considered Supreme Court decisions such as "Kelo" stand as clear evidence of the assault by government on our liberties. Our rights and privileges are threatened by men and women who no longer understand or believe in those "self-evident truths" which were so readily apparent to those who built our great nation.

We are being governed by men and women who are not grounded in the works of Burke and Smith and who have not read the writings of Madison, Jefferson, Washington, Hamilton, Paine and Adams; people who have never read de Toquevilles "Democracy in America" and as a consequence do not even understand the nation they serve.

They are vain men and women who place their priorities on the inconveniences of the moment rather than the interests of our future and the rights of our citizens. They are more concerned with going on their Christmas vacations than in protecting their constituents.

We are governed by people who hold our Constitution in contempt as an out-dated restrictive document which prevents them from doing what they "know" is best for our citizens. Our current President famously lamented that
"the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf."

Is it surprising that some of us are disturbed that a man who could say the above about our Constitution has now been granted almost unlimited powers of internment of citizens he or his administration deems to be a threat?
"But you must remember, my fellow-citizens, that eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing. It behooves you, therefore, to be watchful in your States as well as in the Federal Government."
-- Andrew Jackson, Farewell Address, March 4, 1837

Long Live Our American Republic!!!

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