December 15, 2011 marks the 220th anniversary of the Bill of Rights – at least what is left of them. Anthony Gregory’s article at The Huffington Post runs through the list of violations of these precious rights from the Adams administration’s Alien and Sedition acts all the way to the present day violations of the Bush/Obama years via the war on terror. I encourage everyone to read the whole article and reflect on what these rights mean to you on this Bill of Rights Day. If you read nothing else from the article, at least read Gregory’s conclusion:
Clearly, we fall far short from having Bill of Rights that we adhere to and that was designed for our future posterity over 220 years ago. In the end, it is public opinion that most restrains political power — not words on paper, not judges, not politicians’ promises. A population that is not decidedly and passionately against violations of their liberties will see their rights stripped away. If we want to have a Bill of Rights Day worth celebrating, we must demand that officials at all levels respect our freedoms — and not let the government get away with abusing them.
Gregory is right: preserving the Bill of Rights ultimately rests with all of us.
Despite some valiant efforts of a handful of senators, the National Defense Authorization Act for FY 2012 passed by an astonishing 93-7 vote. Earlier today, Sen. Dianne Feinstein offered yet another amendment to the bill that would have limited the military’s jurisdiction to detain suspects captured outside the U.S.; the amendment failed by a narrower 55-45 margin.
In the first video below, Mark Kirk (R-IL) in his floor speech explains how Sections 1031 and 1032 violate the principles of the Bill of Rights by reading the applicable amendments. Sen. Kirk makes some geography based distinctions in determining whether U.S. citizens have due process rights (which I disagree with; geography should not matter) but otherwise does a great job of explaining to his fellow senators why keeping these sections in the bill is a terrible mistake.
Though he voted against the offending sections of the bill, Sen. Kirk ultimately voted with the majority in supporting the overall legislation.
Sen. Rand Paul (R-KY) on the other hand supported neither. Paul’s floor speech is equally compelling and perhaps even more chilling than that of Kirk’s. Could you find yourself an innocent victim of this bill? Do you have any missing fingers? Do you have more than a seven day supply of food? How many firearms do you own and if so what kind of ammunition do you use? Depending on your answers to these questions, it’s possible that you could find yourself detained, perhaps at Guantanamo Bay or elsewhere, indefinitely with very little legal recourse according to Sen. Paul.
During his debate with Sen. McCain, Nolan warned voters of what he called a “dangerous, evil, un-American” bill which McCain co-sponsored called S. 3081, the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.” This bill would authorize indefinite detention of American citizens without trial. Nolan was so outraged by this bill he said that this was one reason he decided to run against Sen. McCain.
Sen. McCain brushed off Nolan’s comments saying that Nolan “may be a little bit biased.”
Fast forward just over a year later, Sen. McCain has sponsored another piece of legislation hidden in the National Defense Authorization Act for FY 2012 that is very similar. One of the more concerning aspects of the bill is Section 1031:
SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) 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) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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).
The next section, Section 1032 adds some confusing language as to whether American citizens can truly be held indefinitely:
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
(a) Custody Pending Disposition Under Law of War-
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined–
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement 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.
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS– The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
Christopher Anders, senior legislative counsel of the ACLU points out that the language contained in Section 1032 only applies to Section 1032. To put it another way, according to Section 1031 U.S. citizens can be detained indefinitely and even sent to another country without the normal civil liberties protections guaranteed in the Fifth, Sixth, and possibly Eighth Amendments.
Sen. Mark Udall (D-CO) introduced Amendment No. 1107 to the bill that would have mitigated much of the civil liberties concerns found in 1031 but it was soundly defeated by a 61-37 vote. Only two Republicans, Mark Kirk of Illinois and Rand Paul of Kentucky voted in favor of the Udall amendment.
Now the vote for the National Defense Authorization Act for FY 2012 is set for today, December 1, 2011. There isn’t much time left to stop this horribly unconstitutional bill from being passed.
This being said, President Obama has threatened to veto the bill if these sections are still in place when it hits his desk. I’m not quite sure how the president can say on one hand he can send drones to kill American citizens while on the other say he opposes indefinite detention of American citizens but a veto would be the correct response regardless.
President Obama might well veto this bill but I have no confidence that any of the Republican challengers would veto similar legislation in the future save Gary Johnson (who is sadly very much a long shot at this point), Ron Paul, or perhaps Jon Huntsman.
We can now see that David Nolan’s concerns he expressed in the 2010 debate were well founded after all.
Isn’t it interesting that “1%er” Ron Paul has won several straw polls and has even cracked the top 3 or 4 at various points during the campaign and is almost always polling in the double digits? Ron Paul is hardly a 1%er despite efforts on the part of the sponsors to limit his exposure (in the most recent debate, Paul had a whopping 89 seconds to make his case on national television).
Then there’s Herman Cain the other “marginal” candidate who until the most recent couple of weeks following accusations (whether legitimate or not) of sexual harassment along with some other missteps on foreign policy was neck and neck with the establishment favorite Mitt Romney. Cain may have fallen from grace but he isn’t a 1%er without a prayer of winning neither.
The only one of the three who is truly a 1%er unfortunately is Gov. Gary Johnson. Of the three Johnson is the only one who has been successfully excluded from all but two of the nationally televised debates. Up to this point, the Johnson campaign has encouraged supporters to write and call the debate sponsors to encourage them to reconsider but to no avail. In true libertarian freedom of association fashion, Johnson, though disappointed with his exclusion, respected the right of the debate sponsors to exclude him.
Now it seems the Johnson campaign has had enough with The Gary Johnson Rule and it’s no more Mr. Nice Guy. The Johnson campaign has now filed complaints with the Federal Election Commission (FEC) and the Federal Communications Commission (FCC) in response to Johnson’s most recent exclusion from the South Carolina CBS debate.
On Saturday, November 12, 2011 Respondent CBS televised on its national network another debate, but instead of including all leading candidates has elected to arbitrarily and capriciously exclude some candidates and include others. In so doing, CBS is, without any other explanation, choosing to support certain candidates. By excluding viable candidates like Complainant, who has been included by cable networks in their debates CBS is directly and significantly supporting those candidates it favors, and advocating the nomination of one of their favorites and opposing the nomination of Complainant, whom CBS evidently disfavors. In so doing, CBS is making an illegal corporate in-kind contribution to those favored candidates. The value of this contribution vastly exceeds the contribution limit that applies to any category of lawful donor.
2 U.S.C. §431 (8) (A) (i) defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” No rational person could possibly argue that exposure during an hour-long debate televised in prime time on the CBS network is NOT something of value. Indeed, CBS sells advertising spots during prime time for huge sums, and makes and reaps significant revenues in doing so. By any standard, this airtime is a thing of value within the ambit of that phrase in this statute. If all viable candidates were being included in the debate that might lead to a different conclusion, but by excluding candidates CBS disfavors –opposes—and including those it favors –supports—Respondent is violating the Act.
I believe the Johnson campaign has a very valid point in this complaint to the FEC. Whether we like the campaign finance laws or not, Johnson is bound by them and must abide by them; it only seems fair that CBS must be legally obligated to follow them as well.
Gov. Johnson’s complaint to the FCC, however; is much more bothersome IMHO.
Here are some excerpts (from the same link as above) from the FCC complaint [Much of the language in the FCC complaint is identical to that of the FEC so I’ve omitted those parts]:
The Federal Communications Commission has the authority to regulate fair access to the airwaves of broadcast by network television networks.
[…]
The public owns the airways over which CBS broadcasts, and the public deserves to be free from bias- favoring some candidates over others- as well as illegal support of certain presidential candidates on national network television. Unfair access to the airwaves of broadcast by network television is clearly an issue within the FCC’s mandate. The illegal corporate contribution CBS is making in including some candidates and not others is addressed in a separate formal complaint to the Federal Elections Commission. The FCC should take appropriate action against CBS.
The public owns the airwaves? Yes, I understand that this is the accepted conventional wisdom but this is not something I would have expected from perhaps** the most libertarian leaning candidate to ever seek the nomination for the Republican Party!
I fully and completely understand the frustration because as a Gary Johnson supporter, I too am frustrated with how the Johnson campaign has been treated by the establishment. I take it damn personally that the candidate who best advocates and represents my views has been excluded from these debates while big government, freedom hating, torture supporting, war mongering fools like Rick Perry and Rick Santorum make idiotic assertion after idiotic assertion on national television often unchallenged . I often wonder if Johnson might have had similar success as Ron Paul or Herman Cain had his (and by extension, my) voice been heard in these debates.
We will probably never know.
But to write the FCC and make the argument that Gov. Johnson has some sort of right to participate in the debate because the public “owns” the airwaves just makes me cringe. This comes far too close to the so-called “Fairness Doctrine” for my comfort. The public doesn’t own the airwaves, the broadcasters do. CBS buys the licenses and is supported by advertisers – not the public.
If the debate was sponsored and aired on PBS and/or NPR the Johnson campaign would have a legitimate point because those stations are supported by the public (i.e. taxpayers and viewers like you) but this is not what we are talking about here.
Maybe the Johnson campaign believes the ends justify the means but I would rather Gary Johnson lose following his small government principles than win by compromising them.
For the first time ever, reason.tv is cheering their “Nanny of the Month.”
That’s right, starting September 1 , more than 500 Michigan restaurant and bar owners will begin turning state lawmakers away from their establishments. State Senator So-and-so wants a brew? Too bad. Politicians won’t be served until they revisit the state’s 2010 smoking ban, which, owners say, has devastated business, and left bars like Sporty O’Tooles on the verge of collapse.
Okay, “nanny” is a bit of a misnomer in this case as these bar owners are reserving their freedom of/from association rights in their own establishments but good for them for standing up to these busybodies in the legislature. These are the kinds of bans I would love to see more of.
