You say that:

1. The authority is specific and narrowly constrained.

Laws written by Congress do not override the Constitution, if they wish to change the Constitution they need to follow Article V. Regardless we can all site examples of laws that were “specific and narrowly constrained” that were violated by the Executive or broadened by the Courts.

2. The battlefield is wherever the enemy is.

Since they have declared the whole world to be the battlefield including the United States, when can we expect Martial Law to be declared?

3. The Fifth Amendment does not apply to unprivileged belligerents.

On American soil who determines the definition of belligerents, Congress, the President, the Military or the Courts?

Abraham Lincoln detained without habeas corpus over 13,000 citizens that disagreed with his polices including a US Representative. After the war, the Supreme Court officially restored habeas corpus, ruling that military trials in areas where the civil courts were capable of functioning were illegal.

Woodrow Wilson again detained American citizens that spoke out against his policies during WWI or just happened to speak German in public.

And the most outrageous of all was FDR’s confining American citizens to Internment Camps without charges just because they were of Japanese descent.

4. The bill only authorizes detention of the 9/11 attackers, Taliban, al-Qaeda, or their supporters. SO IF YOU ARE NOT A MUZZY TERRORIST SYMPATHIZER, THE BILL DOES NOT APPLY TO YOU!!!!!

Since this is an unusual conflict where no Official Declaration of War exists all rules of war do not seem to apply according to the Executive Branch, i.e. POWs and their treatment. This is not a war against a State or even an ideology, but a “War on Terrorism”. Terrorism is a tactic used by multiple individuals and groups; so all that needs to be stated is that someone is a terrorist to nullify their rights? Keep in mind the Vice President and the former Speaker of the House among other government officials have called the Tea Party activists terrorist.

5. The Non-Detention Act of 1971 was passed to repeal portions of McCarran Internal Security Act of 1950, [1], specifically Title II, the “Emergency Detention Act”. It had allowed for detention of suspected subversives without the normal Constitutional checks required for imprisonment. The Non-Detention Act requires specific Congressional authorization for such detention. Passed as Public Law 92-128, 85 Stat. 347 (1971), it was codified at 18 U.S.C. § 4001(a).
This Defense Authorization Bill does not repeal the Non-Detention Act of 1971. It follows it!

These two arguments seem to say that if Congress just passes a law then it is legal and Constitutional. Only laws passed in accordance with the Constitution are legal otherwise they are ‘null and void’. If Congress can pass anything it wants and the President can do anything he wants and then the Supreme Court goes along with it; it still does not make it Constitutional.

The Constitution was created and ratified by the States and they not the Federal Government have the final say over what is Constitutional, for  if the Federal government is the final arbiter of its own powers then we do not have a Constitution of limited powers, because they can say it  means whatever they want it to mean.

6. There are limits on detention…
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

The authority is specific and narrowly constrained… (enemy combatants) that have joined declared enemies and began fighting for them or aiding them. They are unprivileged prisoners of war. POW’s do not get trials, but are held until the end of the military action.
But in the case of this law, the DOJ can opt for a civilian trial if they wish.

Article III, Section 3 of the Constitution plainly states… “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have the power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. “

Looks to me like no American citizen can be held indefinitely without charges, they must be tried for treason if they go to War or gave aid and comfort to our enemies, they are not “enemy combatants” they are traitors according to the Constitution.

“In the 62 cases reviewed, the subjects increasingly spoke out against the government, blamed the government for perceived problems and did so in a way that caught the attention of other people in their communities, according to the senior counterterrorism official who spoke on condition of anonymity to discuss the private White House event. Subjects became active on the Internet to espouse extremist views. And in some cases, the subjects purchased weapons, ammunition or explosive materials.” *

Other than having explosives, I conceivably fit the bill. So, do any of those things apply to you?

* Police chiefs to discuss terrorism at White House

Still have more questions, then check out NDAA: Open Season for the Police State transcript from TRX: Tenth Amendment Radio featuring Jim Babka from DownsizeDC.


William Kennedy

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