We Are All Well and Truly F***ed

Yeah, sorry to rain on your Christmas parade, but I simply couldn't ignore the ongoing war against our rights and liberties which is being waged by our Congress which was elected ostensibly to protect those same rights. This began in earnest following 9/11 (of course there have always been those in power that are threatened by the rights recognized by our Founders, but it has gone into overdrive since then) first with the establishment of the Department of Homeland Security, the Transportation Safety Administration and the Patriot Act. Little by little, the rights grab by the government has grown larger and larger and larger.

We really didn't notice as our rights were nibbled away. We were willing to take our shoes off or consent to searches with no reasonable suspicion because we were in shock following the attacks of the WTC and the Pentagon. But this, of course, was just the beginning. The Patriot Act's authorization of warrantless searches and seizures, the extra-judicial detention of "enemy combatants", the prosecution of two undeclared wars, the use of tactics such as "extraordinary rendition" whereby suspected terrorists were swept off the streets and shipped to other countries wherein they were tortured and held indefinitely, the use of torture by our own government -- all of this was seen by us as necessary for the prosecution of terrorists, for the defense of the Homeland, for all of our safety.

With the election of Barack Obama, many of us looked forward to a return of the rule of law and the re-establishment of our Constitution as a guide for our actions. However, the Obama administration has doubled down on the previous administration's erosion of our rights in the name of security. The use of assassination, including that of American citizens in foreign territories, the use of unmanned drones to carry out our wars, the expansion of the goals and boundaries of our military forays, the re-institution, expansion and re-authorization of the Patriot Act have all led  to a continuation of the deterioration of our rights and freedoms as American citizens.

Now, the battle is coming home.

The United States Senate, in a completely bi-partisan effort, has passed the National Defense Authorization Act of 2012. You can read the act here. For the most part, this is a purely mundane bill which funds our military and its various missions throughout the world. It is in essence the military's budget for the Fiscal Year 2012.

However, the bill contains provisions, co-sponsored by Senator Carl Levin (D-MI) and Senator John McCain (R-AZ) which authorize the detention by the U.S. Military of any "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." (emphasis added)

What this provision does is give the United States military the ability to detain any American citizen that it deems to be a "terrorist" indefinitely without charge and without trial even if they are on American soil and every act they have allegedly committed has occurred on American soil.

Now, many may argue that this only deals with people that are actively carrying out the mission of Al Qaeda and are therefore enemies of the State and not entitled to the protections of our Constitution. To that, I ask, "Who decides that?" Under this law, the decision would be made by the President and the Military. Period. No review. No attorney. No judge. No jury. We whisk you away and that is it.

These are the things we used to read about in Banana Republics in Central and South America who had death squads and dictators. We heard about the marches of the Mothers of the Disappeared in Argentina or the victims of the brutal Pinochet regime in Chile. Tales were told of African juntas who would just sweep their enemies off the street never to be heard from again.

The Tea Party was right. Our  freedoms are under assault by the very government that was elected to uphold those freedoms. Now, we may disagree on the level of imposition or legality that the Health Care law's requirement of purchasing of health insurance, but I would hope that we agree that the detaining of U.S. citizens without charge or trial based on the decision ultimately of one individual that they are a "terrorist" or have "committed a belligerent act" in aid of a terrorist is beyond the powers proscribed to the Federal government by our Constitution.

There was an amendment offered by Senator Mark Udall (D-CO) to forbid the indefinite detention of U.S. citizens under the Act. It was defeated garnering only 38 votes. A later amendment offered by Sen. Dianne Feinstein (D-CA) was passed 99-1 but all this amendment stated was that "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." This amendment passed because a majority of Senators believe that the President already has the power to detain U.S. citizens captured on U.S. soil indefinitely without charge or trial.

There is a passage in the law which has been quoted by many who claim that the Act doesn't apply to U.S. Citizens or legal resident aliens. Section 1032(b)(1) of the law states "The requirement to detain a person in military custody under this section does not extend to citizens of the United States." Section 1032(b)(2) contains similar language in regard to Lawful Resident Aliens for actions committed within the United States. However, this language only applies to the requirement that those held under this act be held in Military custody. Section 1032(a) requires that any non-Citizen be held in military custody. The language in 1032(b) only says that Military custody is not required for U.S. citizens and lawful resident aliens, it in no way forbids it. In fact, the clear language of the Act endorses the indefinite detention of U.S. citizens without charge by the military, even for acts committed within the United States.

The bill ultimately passed the Senate by a vote of 93-7. The only Senators who ultimately stood against this greatest power grab by the Federal Government imaginable and voted against this grossly unconstitutional bill were the following: Tom Harkin (D-IA); Rand Paul (R-KY); Tom Coburn (R-OK); Jeff Merkley (D-OR); Ron Wyden (D-OR); Bernie Sanders (I-VT); and Mike Lee (R-UT). I give immense credit to the three Tea Party stalwarts in the Republican party, Rand Paul, Tom Coburn and Mike Lee who had the courage to vote against re-authorizing funds for our military over this language. They deserve a lot of credit for this and have shown that they are men of principal when it comes to standing up for the values on which they campaigned.

There are many noted Tea Partiers who despite their assertions that they are against the expanding power of the Federal government and claim support of the Constitution who voted in favor of the bill, namely: Jim DeMint (R-SC); Kelly Ayotte (R-NH); Scott Brown (R-MA); Charles Grassley (R-IA); and Marco Rubio (R-FL). Along with these, you can throw in EVERY OTHER DEMOCRATIC SENATOR OTHER THAN THE THREE MENTIONED ABOVE WHO VOTED AGAINST IT! Is there any wonder that I refuse to call myself a Democrat and am growing increasingly disillusioned with the Democratic Party in general?

Ultimately this issue will end up being resolved by the Courts, and I have little faith left that our Courts will do the right thing by our Constitution. However, there are several Constitutional arguments which would show that this Act is ultimately unconstitutional and I would like to look at those briefly.

First, there is an argument which has been made that this bill amounts to a Bill of Attainder. Bills of Attainder are expressly prohibited by Article I, section 9, subsection 3 of the Constitution. Bills of Attainder are laws which declare the guilt and punishment of a person or group of persons. This argument certainly does deny access to the courts to contest one's guilt. Whether this act does in fact amount to a Bill of Attainder or not, it is unlikely that the Court will decide the Constitutionality of this bill on this issue.

Second, this bill violates the Constitution's prohibition against suspension of Habeas Corpus. Article I, Section 9, subsection 2 states "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." It's hard to see how this bill would not violate this section. The proponents of the bill argue that under the laws of war that the individuals covered under this bill are enemy combatants and therefore can be held without charge. However, holding a citizen of your own nation essentially as a Prisoner of War is not convincing to me and hopefully will not be to our courts. Also, it is hard to see how anything referred to in this bill would amount to a case of rebellion or invasion.

Third, there is the very simple argument that this violates the requirement that all criminal cases be decided by jury. Article III, Section 2, subsection 3 states "The trial of all Crimes, except in Cases of Impeachment, shall be by Jury." Detaining a citizen without charge on what are obviously allegations of violating criminal activity clearly violates this provision of our Constitution.

Fourth, the Fifth Amendment to the Constitution states in part "No person shall be...deprived of life, liberty, or property, without due process of law." To me, this is the clearest violation that is presented by this bill. I can see no argument that could justify the detention of U.S. Citizens without charge and without trial for an indefinite period of time. This is a clear violation of the due process protections afforded in the Fifth Amendment.

Last, the Sixth Amendment to the Constitution states in part "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." Every part of this amendment is violated by this bill. We don't get to deny the protections of our Constitutions to some citizens because we don't like them, or we don't like their actions.

It disturbs me greatly the way that our elected representatives simply ignore the protections of the citizens who elected them with such nonchalance. There is no question that this law, even if you see it as well meaning and with good intentions to protect us against terrorist attacks as its proponents argue, can easily be expanded to cover any number of individuals who have no ties to Al Qaeda, the Taliban or its associated forces as related in the bill. Certainly domestic militia forces would be among the first to fall under its web. As it expands further, any group threatening the composition of the government in any way (read here Tea Party and Occupy Wall Street) would quickly find its rights being even further restrained, as their acts are deemed belligerent and their members disappear into an unknown detention facility, never to be heard from again. This could quickly be expanded to include any political enemies of the current President or their supporters.

To sum it up, this bill is an open invitation to a totalitarian military state in which the Federal government can and will limit the freedom of anyone with whom it disagrees.

The question is often asked, "Where shall we draw the line?" In his famous dissent in the landmark torts case Palsgraf v. Long Island Railway Co., Justice Andrews said "It is an uncertain and wavering line we draw, but draw it we must as best we can." I draw the line here. You can not laugh at our rights and liberties any longer any more. This crosses the line I have drawn, and the line that has been drawn for more than two centuries by American citizens who have fought to maintain the dreams of our Founders.

The line has been drawn. Are you with me? Are you willing to fight against those who would cross that line?