SB1867 Revisited (NDAA)
On December 1, 2011 I published an article that gave a straightforward analysis of Sections 1031 and 1032 of the NDAA (National Defense Authorization Act). There seems to be quite a bit of controversy on this matter. Some feel that the citizens who are concerned with their liberty should be dismissed as alarmist, “Chicken Littles.”
Additionally, I recently discovered congressional aides are telling people there are no worries about NDAA because Mrs. Feinstein’s Amendment, SA1456, saves the day. No, it does not. SA1456 is more political maneuvering that is full of empty language that has no real effect what-so-ever. The language states:
(e) 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.
With the “Chicken Littles” and Mrs. Feinstein in mind, I would like to address just a few more points on this issue and then I am done with this subject. I am confident I have done my part to educate on the truth. Unlike the popular media today, I do not feel it is my responsibility to force anyone into my opinion. What you do with the truth, is up to you. I do feel that given what we know from history, both ancient and recent, there is cause for concern.
First, the mere fact that the provisions in question are stuffed inside a must-pass bill like NDAA, instead of standing muster on their own, is worthy of great suspicion. Take into account that every time these provisions have been presented independently, Congress has consistently denied them; case in point, “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010”.
Secondly, these bills are written by lawyers, men and women who are trained to be wordsmiths. They are trained to use just the right words to ensure that the desired effect is unavoidable. Many attorneys (including this one) have concluded that the language in these sections is not direct and clear enough to exclude US citizens. The natural conclusion is that the drafters did not want to exclude US Citizens. First of all, Constitutional rights are not granted to non-citizens. So, why the legislative gymnastics to declare that fact? If the bill is aimed at non-citizen terrorists, then the legislative gymnastics are unnecessary. The proponents of this bill argue that these sections specifically limit actions of the government to al-Qaeda and Taliban terrorists involved in 9/11, that Section 1032 does not cover US citizens, and that section 1032(b)(1) specifically excludes US citizens. As an attorney, I contend that if the drafters really WANTED to exclude US Citizens, they would have used language that is common to similar legislative acts.
Here is what I mean: In section 1032(b)(1) of the NDAA, the language specifically says that, “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” Legally speaking, stating that an agency is “not required” to do something is the very same as saying they have the choice of doing so or not. If the drafters of this legislation truly wanted to exclude US Citizens from having their Constitutional rights stripped, the lawyers should have used the type of language found in 42 U.S.C. § 2000e-2(e)(2), the section that contains religious exemptions for employment practices or the various religious and medical exemptions that exist from state to state for things like vaccinations.
42 U.S.C. § 2000e-2(e)(2) establishes an exemption from prosecution for employment discrimination violations if the circumstances are based in religious governance. The language specifically states, “it shall not be an unlawful employment practice…” and then goes on to list the organizations that are exempt from the provisions of this federal law. Florida’s statute § 1002.20(3)(b), defining K-12 student and parent rights regarding immunizations states, “The parent of any child attending a public or private school shall be exempt from the school immunization requirements upon meeting any of the exemptions in accordance with the provisions of s. 1003.22(5). These provisions are very clear that these laws shall not apply to these specific segments of the population. They do not say they are not required, they say they SHALL NOT or SHALL BE EXEMPT. And neither does SA1456.
Finally, we cannot lose sight of the real issue. The federal government can never have the right to suspend the Constitutional rights of US Citizens without due process, because the government is not the source of those rights. All other argument against or for these provisions become irrelevant when there is even a possibility of US Citizens having their Constitutional rights suspended either temporarily or permanently at the discretion of the federal government.
One prominent “journalist,” attempting to refute the criticisms of concerned citizens, said that “The United States Constitution is a compact between the American people and the government they created. It endows Americans with protections against U.S.-government overreach.” In fact, the Constitution doesn’tendow citizens with anything. The founders in the Declaration of Independence clearly state that these inalienable rights are endowed by our Creator and in the words of Patrick Henry “the Constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government.” The entire purpose of the Constitution is to protect US Citizens from an unlawful and arbitrary government. This bill clearly leans in the opposite direction and this is something every citizen should be concerned about.