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. Continue Reading →
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