Less than one month ago I petitioned the New Shoreham (Block Island), Rhode Island, Town Council to pass a resolution in opposition to section 1021 of the NDAA. In 2003 the Council passed a resolution in opposition to the Patriot Act, so I knew they would give my petition a fair shake.
Thankfully, the Town Council righteously passed the resolution tonight; which demonstrates the great utility in local governments to fight unconstitutional Federal acts. State legislative bureaucratic morass slows the passage of legislation. Citizen disconnect mitigates individual legislator’s accountability for failure to act. Conversely, local governments move fast and the limited number of council members eliminates plausible deniability for failure to act. Local leaders live in the communities they represent, and are held to account for their action, or inaction, daily.
Included in my petition to the Council were two great resources available to all citizens: 1) the model resolution drafted by us here at the Rhode Island Liberty Coalition and our friends at the Tenth Amendment Center and 2) the model letter to local governing bodies. I also published a copy of the model letter in the local New Shoreham paper which brought out concerned community members and publically put the onus on the Council.
The beauty of the resolution is that it comprehensively lays forth exactly how the NDAA offends our fundamental rights enshrined in the Constitution. It educates and sets the table for a productive meeting. The model letter is a great resource because it answers the question that many local governing bodies have; why should local bodies act and not just leave it to the state legislatures or Congress? The compelling answer is that local councils have taken an oath to uphold the constitution, they have the ability to respond to unconstitutional acts, and thus, they must.
At the first Town Council meeting last week, the counselors were well informed and asked all the right questions. They pointed to the provision of section 1021 that seeks to preserve existing law and authorities relating to the detention of U.S. citizens and legal aliens, and asked; does this not protect individual rights? I responded that the laws and authorities are not clear, and importantly, the office of President, under both Bush and Obama, has professed the authority indefinitely detain U.S. citizens as enemy combatants under the 2001 Authorization to Use Military Force. I pointed to the Padilla case, where the 4th Circuit Court of Appeals ruled that the President may indefinitely detain a U.S. citizen as an enemy combatant. Padilla had been held in military detention for 3.5 years with no trial. Thereafter, the Supreme Court refused to consider the appeal after Padilla was transferred to civilian jurisdiction, invoking a sharp rebuke from three Supreme Court justices.
In my opinion, the Supreme Court was derelict in its duty to consider the issue and perpetuated the grey area of authorities NDAA section 1021 seeks to preserve. I argued that there should never be any vagueness or grey area concerning the fundamental rights the NDAA purports to eviscerate. Moreover, the jurisdictional game the Office of President played with Padilla undermines its credibility in dealing with purported enemy combatants. Under the Padilla precedent, the President can simply hold another U.S. citizen for 3.5 years and then transfer him to civilian jurisdiction in order to avoid Supreme Court review and establishment of concrete authority concerning the President’s powers under the 2001 AUMF and the NDAA.
The Council then asked my opinion on an example; what if the Navy wanted information on a person in Block Island, should they not be able to ask the police chief? My answer was that until the NDAA, the doctrine of Posse Comitatus justly prevented such cooperation, and that military investigations within the U.S. are repugnant to our core American ideals. I further stated that if section 1021 of the NDAA did not exist, and the investigative target was ensured civilian due process, the risk of local cooperation with the military leading to the deprivation of fundamental rights would be mitigated.
The Counci also asked me to distinguish between military investigations and detainments of U.S. citizens and legal aliens versus illegal aliens. They asked; shouldn’t the military be able to investigate and detain illegal aliens? My response was that the military has never possessed that purported authority until the NDAA, and also, that the Military is not a scalpel, but a broad sword incapable of distinguishing and segregating legal from illegal residents. Such investigations and detainments of illegal residents would inevitably lead to infringement of legal residents’ rights. Moreover, the civilian Federal police are numerous and more than capable of enforcing immigration laws.
One audience member stated that we are a “Democracy” and that the NDAA should be dealt with on the national or state level. A good citizen in the audience retorted that we a Republic and that Democracy is two wolves and a chicken voting on what to have for dinner (I think our fore-father’s quote involves a lamb, and that liberty is a well-armed lamb contesting the vote). I added that the State of Rhode Island, and Block Island under its home-rule charter, are separate independent governments from the Federal Government that certainly have the authority to respond to unconstitutional Federal acts.
Our second warden, a good and judicious man, responded that he agreed with everything I had put forth “100 percent” and he moved to pass the resolution. Two Council members moved for a continuance in order to conduct more research. The motion for a continuance passed with one nay. The one nay came from our first warden. She is a wonderful woman who was eager to pass the resolution that night.
At tonight’s meeting, there was consternation amongst the Counselors. Obviously, some had read the literature out there in support of the NDAA. The second warden discussed some of the opposing viewpoints, but he rightly concluded that in face of everything out there, and in light of the fundamental rights at stake, he would restate his motion to pass the resolution as written. In discussion, one of the Councilors, a very sharp man, one that I thought might be opposed to a resolution, discussed the issues he saw with the length and assertions in the original resolution. He then entered for consideration a modified copy of the resolution, with much of the language and assertions in there “WHEREAS” clauses eliminated, but that preserved the essential strong language in the “NOW THEREFORE” clause.
The Council then grappled with what law and authorities section 1021 sought to preserve. The Council did not want to state that the case law on the subject was unclear. A fourth counsel member, a wise respectable man, questioned what assertions had be made by the President. A discussion ensued concerning assertions made by Bush versus Obama, and ultimatley whether a provision concerning such Presedential contentions of authority should be included in the resolution. The Council opted in the negative and instead included language that legislation on the subject of citizen and legal alien rights was unclear.
Finally, the Council removed the language from the “NOW THEREFORE” clause that dealt with the military policing the homeland. They did not feel the NDAA authorized a policing role because it was not specifically stated in the NDAA. In my opinion, if the military is purportedly authorized to detain U.S. citizens on the homeland, that is in itself a policing function. However, public comment was over, and I liked where this was headed; to passage.
The Counsel then voted 4-0 to pass the resolution as modified, with the first warden stating that she still preferred the original resolution. I have no reservations that they modified the original resolution. It was drafted broadly and comprehensively to serve as a framework to educate and demonstrate the unconstitutionality of the NDAA. Different governing bodies can pick and choose what provisions from the model resolution they like to develop a specific resolution that works for them, and that will pass. They then thanked me for brining the issue to their attention and moved on to the other business at hand.
I am heartened and proud to live in a community with a Town Council that has the courage to take on the most important issue of our day. Tonight’s action by the New Shoreham Town Council demonstrates the incredible power of local governments to influence public debate. Prior to the Council’s resolution, most people in New Shoreham had not heard of the NDAA. Now, New Shoreham, and hopefully, people throughout Rhode Island, will begin to know of the NDAA. Our communities will educate and empower themselves to follow the lead of our founding Fathers, and yes, the New Shoreham Town Council, and stand up to unconstitutional Federal actions. We live in a great country, but it will only remain great with citizen activism. So, the question is; what are you waiting for? Download your copy of the model legislation and petition your local and state governments TODAY!
CLICK HERE to track the status of NDAA nullification legislation around the country.
CLICK HERE to view a suite of model resolutions and legislation available for introduction in your area.