op-ed originally published in The Daily Telegram (Lenawee County, Michigan)
Statements made by certain members of the Lenawee County Commission quoted in The Daily Telegram’s March 14 story on National Defense Authorization Act detention provisions (“County commission deadlocks on voicing opposition to NDAA”) were utter falsehoods.
And while it’s not unusual to read false statement from politicians, it becomes imperative to set the record straight when those falsehoods create the sole basis defending actions that threaten basic due process rights. Commissioner Terry Collins and David Stimpson both suggested that the federal courts ruled indefinite detention of people on American soil without due process constitutional. The commissioners are either ignorant of the facts or deliberately misleading their constituents.
In fact, last summer U.S. District Court Judge Katherine Forrest granted a permanent injunction, ruling detention provisions written into the NDAA overbroad and unconstitutional.
“The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process,” she wrote. “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”
The Obama administration appealed Forrest’s ruling, but the issue remains far from settled.
Stimpson steps in it again, claiming that voting to refuse compliance with indefinite detention provisions would violate the commissioners’ oath to uphold the law. In reality, even if federal courts put their seal of approval on federal kidnapping, the Supreme Court has held that the feds cannot compel states to enforce federal acts.
In New York v. United States, the Supreme Court said that Congress couldn’t require states to enact specified waste disposal regulations. And in the 1997 case, Printz v. United States, the Court held that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
Stimpson continued his dismal display.
“I absolutely don’t want to comment on this. It’s absolutely ridiculous for us to discuss this.”
Excuse me, sir? Absolutely ridiculous for you, a public official, to discuss infringements on the rights of the citizens you’ve sworn to protect? That’s your job!
Michigan has a long history of protecting its citizens from unconstitutional federal violations of basic civil liberties. The Fugitive Slave Act of 1850 counts among the most disgusting acts ever passed by Congress. This so-called law denied a black person accused of escaping slavery any semblance of due process. A white man could basically drag a black man or woman south into slavery on the power of his word. The parallels between the Fugitive Slave Act and NDAA detention are striking. Both denied the most basic right of due process. And you should note — federal courts upheld fugitive slave acts.
The Michigan legislature passed a personal liberty law in 1855. The Michigan Personal Freedom Act guaranteed any man or woman claimed as a fugitive slave, “all the benefits of the writ of habeas corpus and of trial by jury.” It also prohibited the use of state or local jails for holding an accused fugitive slave, and made it a crime punishable by a fine of $500 to $1,000. Finally, it made any attempt to send a freedman South into slavery a crime.
“Every person who shall wrongfully and maliciously seize, or procure to be seized, any free person entitled to freedom, with intent to have such person held in slavery, shall pay a fine of not less than five hundred nor more than one thousand dollars, and be imprisoned five years in the State Prison.”
Any rational person recognizes the danger in allowing government to operate without basic constraints on its power. The founders insisted on a Bill of Rights for that very reason. The Fugitive Slave Act of 1850 was so obviously counter to basic rule of law Michigan didn’t hesitate to step in and block it. The NDAA falls into the same category. With undefined language that moved a federal judge to declare “The statute’s vagueness falls short of what due process requires,” sections of the act give the president wide latitude to haul people away on American soil without charges or trial.
It is baffling that the Lenawee County Commission couldn’t come up with an affirmative vote against an act so abominable that groups as diverse as the ACLU and the Tea Party have come out in opposition of it. It is a sad commentary on the Lenawee County Commission that something as onerous, repellent and fundamentally un-American as indefinite detention without due process can’t be unanimously denounced by them. Sadder still to find elected representatives of the people unwilling to stand up on their behalf, and misrepresenting the truth to defend their positions.