“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants. It is the creed of slaves.” ~ William Pitt
I don’t necessrily agree with the concerns people have about the detainee clause in defense spending bill S-1867, but I do agree it could be abused easily and that would be a serious concern for me. Habeas Corpus can be suspended when the public safety demands it, but is it needed now?
The fact that so many others have raised alarm bells about S-1867 has caused me to reprint an opposing piece by Kris Anne Hall, who makes an impassioned and convincing case. Please visit Ms. Hall’s website at Kris Anne Hall.com. She is a Constitutional lawyer and her take is a well-informed one.
Here is why people are upset about bill S-1867 –
Congress Decides Constitution is a Threat to National Security
by Kris Anne Hall December 1, 2011
The principles of habeas corpus and due process extend as far back as 12thcentury England. These principles were among the most fearfully guarded liberties among America’s founders. If truth be told it was abuses of due process and an unresponsive government (not simply burdensome taxes) that were the primary causes of the American Revolution. Notice the words of these distinguished Americans:
Ø “Trial by jury in civil causes…trial by jury in criminal causes, [and] the benefits of the writ of habeas corpus…all stand on the same footing; they are the common rights of Americans.” ~Richard Henry Lee
Ø “For depriving us in many cases, of the benefits of Trial by Jury: For transporting us beyond Seas to be tried for pretended offences” ~Declaration of Independence, Thomas Jefferson
Ø “The founders of our nation considered the right of trial by jury…an important bulwark against tyranny and corruption, a ‘safeguard too precious to be left to the whim of the sovereign.” ~Chief Justice William Rehnquist, 1979
Yet, here we are today in the midst of a startling attack on some of our most fundamental liberties. As I write this, our Senate debates a bill that will undermine the very due process rights that thousands of brave souls have bled and died for.
Senate Bill 1867, also known as the National Defense Authorization Act, is the means by which Congress funds the military and is therefore a “must pass bill.” No politician wants to be the one who voted to defund the military, especially if you are a so-called conservative.
Those who would be disposed to usurp the Liberties of this land take these must pass bills and convert them into Trojan horses. This particular Trojan horse puts the due process rights of American citizens in serious jeopardy through sections 1031 and 1032. Sections 1031 and 1032 of this bill are completely unrelated to the funding of the military. These sections, we are told, will ‘save us from terrorists’.
The plan is to remove the Constitutional right of habeas corpus and persons deemed to be terrorists will be detained indefinitely, out of the country. The built-in premise is that the right of habeas corpus is somehow a threat to national security. Who wouldn’t want to stop terrorists? Don’t we all want to be safe? Aren’t terrorist the very demons we should be fighting today? If you don’t support this bill you are a terrorist sympathizer. Am I a terrorist sympathizer simply because I believe that you shouldn’t have to circumvent the Constitution to do your job? Particularly considering the very job description these Congressmen swore to do was to “support and defend the Constitution.”
It is mindboggling that those with the power and responsibility to PROTECT LIBERTY are the very ones who will justify its destruction.
These principles were among the most fearfully guarded liberties among America’s founders.
If truth be told it was abuses of due process and an unresponsive government (not simply burdensome taxes) that were the primary causes of the American Revolution. Notice the words of these distinguished Americans:
1. These Sections Specifically Limit Actions Of The Government To Al-Qaeda And Taliban Terrorists Involved In 9/11
False. This refers to sec. 1031(b) Covered Persons: (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 part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition forces
…I suppose all would be well, if this were the end of this section.
However, the devil is always in the details. Attorneys are trained to look for loopholes, and those who wrote this bill were attorneys, so they are either ignorant or inserting holes to provide doors for future activity.
Door No. 1:…including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
Belligerent act? There you have it, the open door to include just about anyone. Now don’t think these words are not well planned and don’t for one minute assume you know their definitions.
Remember John McCain and Joe Leiberman’s “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010”? This act failed, but that has not stopped John McCain.
This Enemy Belligerent Act defines a Belligerent as: an individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent…an individual who: 1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.” Hostilities? And the door swings wide open.Next argument:
2. Section 1032 Does Not Cover US Citzens.
False. Section 1032(2) states that the requirement to detain an individual applies to someone who has been determined to be “a member of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda: and to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” Sounds pretty limiting right?
Well, here’s Door No. 2, section (4) “The Secretary of Defense (Leon Panetta) may, in consultation with the Secretary of State (Hillary Clinton) and the Director of National Intelligence (James R. Clapper), waive the requirements of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.”
There you have it. All limitations fly out the window if the government determines a “national security interest”. But those that planted these loopholes are not finished.The next argument alleges:
3. Section 1032(b)(1) Specifically Excludes US Citizens
False. Section 1032(b)(1) states “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” Is this the part that is supposed to stop the government from detaining US Citizens? Any decent attorney would tell you that the “prohibitive language” in this statement is a bit ambiguous.
What this section says is the REQUIREMENT to detain doesn’t extend to US Citizens. That means they don’t have to detain them, but what if they want to!
Open Door No. 3, let all who enter beware! All this sounds a bit alarmist right? Why do I think the language is cleverly crafted to be more than it appears? Because those who support this bill do not WANT to protect the liberty of US Citizens. They will, when cornered with the truth, tell you that any US Citizens who is involved with terrorists “DOES NOT deserve Constitutional rights.”
The idea that US Citizens do not deserve their Constitutional rights is a very frightening statement. But put that in conjunction with the understanding that it is the government, specifically this current administration, that gets to CHOOSE which citizens do not deserve their Constitutional rights. Still sounds alarmist right? After all we are talking about terrorists. So you don’t like terrorist? I don’t either. But I do love Liberty and I do fear the power of unlimited government.
And what happens when the government determines you to fit the definition of a terrorist? Janet Napolatano says that soldiers returning from Iraq and those who oppose abortion fit the bill. Which US Citizens DO YOU think should not have protections under the Constitution? Which one of our rights is a threat to national security and need to be curtailed or eliminated?
Remember William Pitt’s words, “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants. It is the creed of slaves.” Terrorism is real and we must combat it. But you cannot have peace without Liberty!
According to Benjamin Franklin, “Anyone who would trade Liberty for temporary security deserves neither Liberty nor security”. He specifically said, “temporary security” because he knew that being “safe” is a fleeting feeling.
You may think trading just a small piece of Liberty today is worth feeling safe. However, tomorrow safety will fly away when a bigger boogey man turns the corner. Then will you be willing to trade a little more?
Remember, the funny thing about temporarily giving anything to the government is that you don’t get it back and they always want more. Two words: Income Tax.
John Adams stated in his inaugural address in 1797, if “our Government can be influenced by foreign nations by flattery or menaces, by fraud or violence, by terror or intrigue the Government may not be the choice of the American People, but of foreign nations. It may be foreign nations that govern us and not we the people who govern ourselves.”
He was telling us that when the government operates under the motivating factor of fear, those that scare us rule us. He continued with his warning by saying, “If we are to have a free republican government we must have an attachment to the Constitution and a conscientious determination to support it.”
Our only hope of Liberty, our only hope of peace, is through the Constitution, not by circumventing it. Congress took an oath to PROTECT AND DEFEND THE CONSTITUTION OF THE UNITED STATES; they did not take an oath to defeat terrorism. They must stick with their oath; because, the principles in the Constitution do not change; the definition of terrorist apparently changes based on political ideology.
Ronald Reagan called America the last bastion of hope. He was remembering a statement by Daniel Webster, “Hold onto the Constitution and to the republic for which she stands. Miracles do not cluster and what has happened once in 6000 years may never happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world.”
Our Congress has an obligation to us, an obligation to our children, and an obligation to the world. We must stand for Liberty today or our children will bow tomorrow. I stand with Patrick Henry when he said, “Gentlemen may cry, “Peace! Peace!” — but there is no peace. What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!”