Ignorant Judges are Lethal to Liberty

It seems that every week there is some new attack on Liberty.  Last month, it was the US Navy trying to remove Religious Liberty in the name of “Separation of Church and State.”  Last week it was our Congress, removing the right of trial and habeas corpus from US Citizens.  I attribute this to the dismal state of our education system.  We the people are so very ignorant of not only what our Liberties are, but of their source and value.  Ask someone to tell you the five specific protections that exist in the First Amendment and you might hear one or two, followed by a blank stare and silence. Those that hate the fact that Liberty is an inherent possession of the people and want Liberty to be something the government gives to the “worthy” have really taken advantage of this gross negligence.  If we do not know, if we do not understand what our Liberties are, how do we recognize when they are under attack?

Our legal education system is no better.  Rulings that fly in the face of our founders’ intent illustrate the shaky foundation given to our lawyers and judges.  In a recent example a US District Judge, Marco A. Hernandez, has taken it upon himself to decide who has the right to freedom of the press and its protections and who does not.   This judge has done so by determining that a blogger, who has over 400 blogsites that publish her work, cannot possibly fall under the title of journalist.  After all, we all know that the only people that are journalists are those represented in the White House Press Corp or paid by top media corporations.  We definitely cannot accept someone who considers themselves a “blogger” and only prints on the internet as a REAL Journalist!

That is exactly how this federal judge has ruled.  Oregon statute reads:

“[n]o person connected with, employed by or engaged in any medium of communication to the public shall be required by . . . a judicial officer . . . to disclose, by subpoena or otherwise . . . [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public”

“Medium of communication” is broadly defined as including, but not limited to, “any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.”

However, this judge has claimed that this woman is not a journalist because she:

“fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system”

I am amazed at the focus of this Judge.  He has taken the examples in the statute as the litmus test for determining media, completely ignoring the very plain statements “any medium of communication to the public” and “not limited to”.  Any other time, a judge would be using this language to bring in everything, including the kitchen sink.  This stinks of motive.  But the Judge is not finished with his definition of media.   He claims in order for Ms. Cox to be “media” she must show…

 “evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story.”

This time, however, the Judge uses no statute, no legal source to develop this further definition. This is apparently something he has come up with all on his own.  I wonder if many in mainstream media could hold up under this standard.  I know for fact that today’s “journalists” fail in at least 5 out of 7 of these benchmarks.  I mean really, when was the last time you heard this level of journalism from any US mainstream media?  Because Ms. Cox does not fit this Judge’s internal definition of media, she is therefore not afforded the same protections as a paid member of the mainstream media due her under Oregon statute.

Would our founders, so vital to the very establishment of Liberty, have qualified as journalists under these standards?  What about the Committees of Correspondence founded by the likes of Richard Henry Lee, Sam Adams, and James Otis, Jr.?  These committees were dedicated to the purpose of providing the colonists with the truth about the activity of the British Government. Many colonists were tired of the propaganda and false reports coming from the King, Parliament, and their dedicated media and wanted to know the truth.  The committees of correspondence provided this truth.  They also became the Sons of Liberty and sparked a revolution.

I’m sure Thomas Paine would’ve landed on this federal judge’s chopping block, as well.  After all, he was not paid by any media corporation and was definitely not approved by the crown for his Common Sense publications. We cannot forget about Mercy Otis Warren, who through her prolific writings of articles and plays encouraged a nation to stand against tyranny.  Once again, I doubt if she would have been considered a “journalist” under this judge’s guidelines; she had no education in journalism, she was not employed by a major media outlet, and she certainly didn’t interview “the other side” to get both sides of the story.  She didn’t have to, she was living it.

But how did our founders intend to handle this “congress shall make no law abridging the freedom of speech, or of the freedom of press”?  The best argument I can offer is that of Alexander Hamilton’s as he states in Federalist Papers 84.

“…why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

Hamilton argued with the likes of James Madison and Richard Henry Lee that an incorporation of the Bill of Rights would be a danger to the very liberty that they hoped to protect. He believed to his core that if the Bill of Rights were incorporated in the Constitution, that it would provide to those who wanted to control Liberty the very excuse to do so through definition and regulation.

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted… I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

Hamilton actually uses the illustration of the freedom of press.  He reasonably argues that there is no need to insert a protection of freedom of press, because the federal government had been given no power to interfere with this Liberty.  Hamilton knew, as Madison points out in Fed 45, “The powers delegated by the proposed Constitution to the federal government, are few and defined.”  Madison continues to specifically list those powers as “principally on external objects, as war, peace, negotiation, and foreign commerce.” Hamilton pointed out that regulation of freedom of press, or any of the proposed rights, was not part of the powers given to the federal government so they would have no right to attempt to regulate it.

Hamilton’s greatest fear was that by attaching a Bill of Rights to the Constitution, evil men who wanted to control Liberty would then claim a right to regulate Liberty.   Here we are, fulfilling Hamilton’s greatest fear, coincidentally using his very illustration.

Our Constitution and our Liberty is in peril because our legal professionals have no idea the history behind our Constitution and the reasoning our founders put into its provisions. Our lawyers and judges cannot honestly honor their oath to the Constitution, because they have no true understanding of its meaning.  They cannot do as John Adams commanded, “have an attachment to the Constitution and a conscientious determination to support it”, and ensure a “free republican government” when they are ignorant of the founder’s intent.

We the people must fill this void.  We must become the ones educated enough to make that conscientious determination to support the Constitution.  Reading it is not enough.  Knowing case law is not enough.  Just as any legally binding contract, we must understand what the parties intended the obligations and limitations of government to be.  Otherwise we just end up pooling our ignorance.  In this case, ignorance is not bliss, it is the death of Liberty.

Art Law Prof

Yes Patriot, There is Hope for America – Merry Christmas

Many patriots have expended a great deal of energy this year in the fight to see our Liberty protected and America’s greatness restored. As we enter into this Christmas season with many struggles ahead and mountains yet to be conquered, let us be reminded of a hope rooted firmly in the American experience.

Our history is rich with men and women who have surrendered all so that many could have the greatest nation the world has ever known. For over 700 years before the Declaration of Independence, men and women were learning the lessons that would be taught to our founders. Lessons that would infuse our founders with a courage and a hope that would build the greatest nation in the world. Patrick Henry said, “I have but one lamp by which my feet are guided, and that is the lamp of experience. I know no way to judge the future but by the past.” He was letting us know that his knowledge of those last 700 years, were the very reason he knew how this fight would turn out. He knew that every time men and women understood the value of Liberty and pledged all to protect it, they were always victorious. These guarantees of history must have raced through Henry’s head; 1100 Charter of Liberties, Magna Carta, 1628 Petition of Right, 1641 Grand Remonstrance, and his very own Bill of Rights of 1689. These were battles fought in the name of Liberty and he knew that victory was a guarantee. This is our history. This is our guarantee. This is our victory!

Patrick Henry had more than knowledge of history. Patrick Henry knew their victory was guaranteed not only by the lamp of experience, but also because they served a “just God who presides over the destinies of nations” and when standing for Liberty, a gift from God, they could not fail.

He declared,

“We are three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us.”

Benjamin Franklin reiterated this understanding to our founders when he proclaimed:

“In the beginning of the Contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the divine protection.- Our prayers, Sir, were heard, & they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor…and have we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth- that God Governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?”

Though we may become reacquainted with the history that provides us with a guaranteed victory when we choose to stand for Liberty, we are still wanting until we reacquaint ourselves with the Giver of that Liberty. Thomas Jefferson warned,

“Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?”

Our founders were in a position to pledge their lives, the lives of their families, everything that they had because they were firmly rooted in ALL the assurances of Liberty.

There is a story told of Daniel Webster – one of the greatest orators of our time – on his death bed, being ministered to by his dearest friend and physician. When his friend realized he could no longer minister to Daniel’s physical needs, he began ministering to his spiritual needs. He read to Daniel his favorite hymns. He read, “There is a fountain filled with blood, drawn from Emmanuel’s veins…” and when Daniel’s friend read the last verse to this hymn “Then in a nobler sweeter song, I’ll sing thy power to save, when this poor lisping stammering tongue lies silent in the grave” one of the greatest orators the world has ever known uttered his final three words, “Amen, Amen, Amen.” Our founders knew that Liberty is a gift from God, and those that stand for God’s gifts will be victorious through God’s promises. They firmly believed that living in tyranny was worse than dying for Liberty. They knew that through their faith in Christ, their rewards in standing for God’s gift would be certain, whether on the battle field or in Heaven.

This is not the darkest hour of our nation by far. We still live in the greatest nation in the world. A nation built upon the principles of Liberty. The principles that cry all men are created equal and endowed by their creator with certain inalienable rights. A nation where all men have equal opportunity to life, liberty, and the pursuit of happiness. No other nation can make that claim. No other people have that birth right. But with that gift comes great responsibility to secure that Liberty for generations to come. We cannot lose hope. We cannot let Liberty slip. Because, it is not our hope, it is not our Liberty, it is the hope and Liberty of ages and millions yet unborn. We must reacquaint ourselves with the lamp of experience that gives us the courage to see a guaranteed victory. But we must also reacquaint ourselves with the Giver of that gift of Liberty and the provider of the hope of victory.

In one of the darkest moments of our history, a story is told of Henry Wadsworth Longfellow. Henry’s wife had been tragically and fatally burned in June of 1861. Henry, himself, was badly burned trying to put out the fire that consumed his beloved wife. He was so consumed by grief over the loss of his wife, at Christmas he wrote in his journal, “How inexpressibly sad are all holidays.” One year later, Henry wrote, “A merry Christmas’ say the children, but that is no more for me.” That following year, Henry learns that his oldest son was severely wounded in the Civil War after a bullet passed under his should blades damaging his spine. His journal was blank on Christmas on 1864. However, on Christmas day, 1865, Henry penned the words to “I Heard the Bells on Christmas Day”. During one of the darkest times our nation has ever known, Henry Wadsworth Longfellow found his hope;

“I heard the bells on Christmas Day

Their old familiar carols play,

And wild and sweet

The words repeat

Of peace on earth, good-will to men!

And thought how, as the day had come,

The belfries of all Christendom

Had rolled along

The unbroken song

Of peace on earth, good-will to men!

And in despair I bowed my head;

“There is no peace on earth,” I said;

“For hate is strong,

And mocks the song

Of peace on earth, good-will to men!”

Then pealed the bells more loud and deep:

“God is not dead; nor doth he sleep!

The Wrong shall fail,

The Right prevail,

With peace on earth, good-will to men!”

Henry awoke from his despair and realized that God is not dead and is still the Giver of peace and hope. He knew that God promises victory to those who trust in Christ and will stand for God’s gifts. He was able to express that hope in the phrase, “God is not dead; nor does he sleep! The Wrong shall fail; the Right prevail, With peace on earth, good-will to men!” That same promise belongs to us, the greatest nation this world has ever known. We simply must place our trust in the right place. Now that’s some hope and change I can rely on!


Predator Drone Used in Arrest of Farmer

I have voiced my firm opposition to SB1867 because of its potential use against US citizens, I have been called an extremist, a chicken little, etc. Now multiple News sites have reported an incident that made my hair stand on end. In June of this year, a predator drone was used by local law enforcement to facilitate the arrest of a North Dakota Family.

RT reports: “This is the first time in American history that an unmanned aircraft has been used to assist police in making an arrest on US soil.” As if to assure the reader that this isn’t a misprint, the report continues with “By “drone” we do mean military reconnaissance and assault flying machine used by the US Army (sic) and the CIA, mostly abroad…To be precise, this is the same Predator drone that the US Army (sic) uses in military missions across Afghanistan, Pakistan and any other theater…”

Local law enforcement using a military drone – is this some military sci-fi novel we’re reading? Nope. Apparently DHS has been using these drones in the states for YEARS, yet this story was noticeably absent from American media sources at the time of the arrests. Sadly many people still have faith in the American media, especially if the source purports to align with their own political views. Here’s how it went:

The local Sheriff, Kelly Janke, ran into some trouble while looking for some wandering cows, six cows to be exact. Fortunately for the local sheriff, the Predator drone was returning to Grand Forks Air Base from a mission on the US/Canada border and had some fuel left, so what the hey, let’s send it to North Dakota to look for some cows. Really?

According to local reports, these cows were not alleged to be stolen, they had wandered onto the Brossart farm. According to certain local reports, Mr. Brossart believed these animals to be unclaimed and, in accordance with certain open range laws, the cattle belonged to him. When questioned in court, he answered repeatedly, that the cattle were “his property.” Because of this property dispute, legally speaking, this is now a civil matter. Yet, the Sheriff’s office served a criminal warrant to look for these cows.

When Mr. Brossart refused to honor the warrant, he was tazed and placed into custody. Mr. Brossart was not armed. Mr. Brossart’s sons also refused to honor the warrant, and told law enforcement officers to get off the property. Initial reports say the boys had long guns, and later reports claim high powered rifles. This all resulted in a standoff where no shots were fired and no one was harmed.

Now, as a former prosecutor, who has a deep respect and appreciation for law enforcement and the dangers they face, I understand the problem with people brandishing guns in the presence of officers. But it appears to me that the situation was incited by criminalizing a civil dispute. This was reasonably a civil dispute over livestock ownership which would require a review by a judge and full hearing involving all parties before property is taken. But here is the really disturbing part. The next morning, a tip to law enforcement told officers that the boys were out on tractors harvesting and were not armed. Did the officers now come to the property and attempt to serve this warrant peaceably? No, they responded with MASSIVE force.

Next thing they knew – a mini army and a Predator B drone have been called in. State Highway Patrol, a regional SWAT team, a bomb squad, ambulance, deputy sheriffs from three other counties and a drone arrived at the scene, reports the Los Angeles Times.”

I have been involved with law enforcement as a prosecutor for nearly nine years. NEVER did I see such a display of force over a civil dispute involving “stray cows”. And what did this assault team find? Exactly what they were told, boys harvesting and no weapons and…

“A search of the property turned up four rifles, two shotguns, assorted bows and arrows and a samurai sword, according to court records. Police also found the six missing cows, valued at $6,000.”

There you have it, a small Army called out to subdue cattle rustlers who have four rifles, two shotguns, assorted bows and arrows, and a samurai sword on their 3,000-acre farm. Huh? All this over cows?

And now “the rest of the story.” Apparently, the residents of this farm are members of the Sovereign Citizens Movement, a so-called “anti-government group which the FBI considers extremist and violent,” according to the LA Times article. The primary reason for this is that Terry Nichols was a Sovereign Citizen. However, don’t forget who else DHS considers potential terrorists. Remember the report that claims veterans returning from Iraq and those who are against abortion are also “potentially violent terrorist?” Here is an excerpt:

“Rightwing extremism,” the report said in a footnote on Page 2, goes beyond religious and racial hate groups and extends to “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,” said the report, which also listed gun owners and veterans of the Iraq and Afghanistan wars as potential risks.”

Take some time and read what the ADL says about the Sovereign Citizens. If you refer to yourself as a Constitutionalist, you might be a terrorist. If you believe that government governs best when it governs closest to home, you might be a terrorist. If you take issue with the 16th or 17th amendments, the Federal Reserve, Fiat money, or you believe in the Gold Standard, you might be a terrorist.

Just a week ago the crafters of the SB1867 said they could not conceive of the extraordinary powers given to DHS being used against US citizens; it only applies to “terrorists.” Now we have military drones being employed in the US in police actions against citizens. Really? How inconceivable is it for US citizens to be subjected to the extraordinary powers outlined in SB1867? I believe the purpose of SB1867 is to manipulate the people into giving permission for this abuse of power in the name of security; in the name of fighting terrorism. Are we to believe that they didn’t have this in mind when they wrote that bill?

I am reminded of a similar ploy advanced by King George III against our founders. In his defense of the British Colonies, in the name of National Security, George deployed British troops in the colonies to enforce his laws. In order to properly facilitate this military action, George and parliament passed the Quartering Act.

Whereas there may be occasion for marching and quartering of regiments and companies of his Majesty’s forces in several parts of his Majesty’s dominions in America: and whereas the publick houses and barracks, in his Majesty’s dominions in America, may not be sufficient to supply quarters for such forces…

Understand that George already had the troops in route. He already KNEW there would not be sufficient barracks to house them. There was no question in George’s mind what his intentions were, what resources were needed, and how he was to obtain them. But he could get the people and parliament to agree to this violation of our founders’ rights by softening the language and dealing with a “potential” danger. This is the same disingenuous tactic our Congress has used to perpetrate the gutting of our Bill of Rights and the destruction of our Constitution in SB1867. So, this is only for terrorists? Again, I ask you, WHO IS THE TERRORIST?

So what do we get? Not what Congress said we would get. Not the near impossibility of using this type of military force against US Citizens, but the first use of military predator drones on US Soil based upon a civil dispute over the ownership of cows. NOT against one of the many known al-Queda terrorist camps located here in the United States.

Alexander Hamilton in Federalist Paper 84, quoting Justice Blackstone, gave us this very sober warning:

“To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution”.

This is EXACTLY what SB1867 does. Why are we so deaf to the cries of our founding fathers? Why are we like the spoiled teenager who believes he is immortal and our fathers are simple old fools who have no idea the problems we face today? They had a deep wisdom, based upon centuries of human nature and experience. We must recognize that human nature does not change; there is nothing new under the sun.

George Washington is quoted to have said: Government is not reason, it is not eloquence — it is force! Like fire, it is a dangerous servant and a fearful master. Never for a moment should it be left to irresponsible action.

This parallels Patrick Henry’s warning: The Constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.

Now do you see why Americans are so concerned over SB1867? The 93 Senators that voted in favor of this atrocity are participating in the destruction of our Constitution and it apparently doesn’t bother them any more than it bothers the rest of America.

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.

Congress Decides Constitution is a Threat to National Security (NDAA)

The principles of habeas corpus and due process extend as far back as 12th century 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.  Here are the arguments put forth in favor of these dangerous provisions:

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!”