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Tuesday, December 13, 2011

McCarthy's Missed the Mark

I am writing in response to Andrew McCarthy’s articles, “Rand Paul, Libertarian Extremist” and “The Real Rules of Detention.” Unfortunately, I was not able to read Mr. Paul’s reply that elicited the second article. However, I have read Mr. McCarthy’s articles and enough of the legislation in question to conclude that he has completely missed the mark with regards to Rand Paul’s warning about section 1031 of the Senate Defense Bill, S. 1867.

Yes, it’s true as Mr. McCarthy says:
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. It does not extend to the rest of the world. The central government was created, in large measure, to protect Americans from hostile foreign actors. The Constitution does not grant aliens outside the United States — especially alien combatants who levy war against the American people — the protections American citizens enjoy against U.S.-government infringement on their lives, liberties, and property.
In fact, I wouldn’t have an issue with the first article were it not for the fact that Rand Paul did not take the position of which he was accused by Mr. McCarthy. I have listened to Mr. Paul’s speeches and did not perceive him speaking from some kooky Libertarian philosophy ever. He quotes the founders and the Constitution. Though, I confess myself horrified if Conservatives find something wrong with that as it seems Mr. McCarthy was implying in his rant against Mr. Paul.

Paul has not suggested that enemy combatants captured or killed on foreign soil should be brought back to the US for trial or that they are entitled to any other Constitutional Right. As I recall, while he was speaking from the Senate floor, he actually agreed that it was an acceptable practice. In reality, Rand Paul was fighting against the Senate’s forthcoming grants of power to the President to determine the length and scope of the war on terror as well as to arrest and indefinitely detain US Citizens on US soil on little more than suspicion of aiding terrorism. It stands to reason that if a US Citizen leaves this country and engages the US as an enemy combatant, he or she inherently renounces his or her citizenship and constitutional protections. Such should be treated the same as any foreign born enemy combatant. While technically this, as far as I know, is unconstitutional, I and most Americans, I think, could support a law making it proper.

It also stands to reason that if a US Citizen is a member of the military, like Nidal Hassan, and engages the US as an enemy combatant, he or she will and ought to be dealt with by the Uniform Military Code of Justice which doesn't provide all of the same protections (as far as I know) as a civilian court.

This brings me to my disagreement with the second article because it DOES NOT stand to reason that a US Citizen even only suspected of engaging in hostility against the US should be deprived of the rights and protections afforded him or her under the Constitution because the Constitution prescribes a solution for it. It is called treason, and though inconvenient to some, it requires due process followed by a trial in Federal court where the Judge and jury will determine the sentence.

Remember WWII and Japanese internment camps? We don’t want to relive those days as a nation, do we? While it’s true that this President will never round up Muslims and hold them indefinitely, the potential for it to happen with another demographic is all too real. Only a virtuous man can be entrusted with such power. I am not at liberty to fairly nor accurately judge the virtue of Barrack Obama, but his actions suggest to me that he lacks the virtue and self-restraint to be entrusted with such power as S. 1867 seeks to give. In passing, S. 1867, the Senate has given an aspiring dictator the tool necessary to silence political opposition, and to advance fundamental change that is not good for the US.

Remember Oklahoma and Terry McVey? We didn't need the military to find him and incarcerate him without due process. The FBI and the US Judicial System did a marvelous job of it. The FBI and State and Local Police forces are enough to handle all kinds of "homegrown" terrorist activities. We do not need or want the military having that kind of power within the nation. Remember Ruby Ridge and Waco? These are two instances of the FBI and by extension, the Federal Government, bungling the operation. Were the Branch Davidians truly a threat to the United States? Possibly, or were they just a cult stockpiling survival supplies? Granted, the Branch Davidians may have actually been breaking the law when the government blew up their compound in Waco, but we’ll never know for sure because they were never tried for any charges against them. In 1992, Randy Weaver’s family was all but decimated by Federal Agents in Northern Idaho.

I do not condone any law breaking done by anyone, nor am I suggesting that such extreme events will occur as a result of the bill’s passage. I AM suggesting that there is a possibility. It MAY happen. The Defense Bill grants the power to the President of the United States to: “use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.” Public Law 107-40 is the law that declares war against those who perpetrated the attacks of 11 September 2001.

So, if one knows the law, it would seem pretty clear and specific: We’re hunting down Al-qaeda, the Taliban and other terrorists! Yippee! We could even build a nice syllogism that says there may be such militant jihadists and terrorists here in the United States, so we need to empower the US Military to continue the war here at home. Many people would and do believe that syllogism including Mr. McCarthy.
However read the wording of the bill:
(b) Covered Persons- A covered person under this section is any person as follows:(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 a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. (c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following: (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)). (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. (4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity. (d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force. (e) Authorities- 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. (f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).
“Associated forces that are engaged in hostilities against the United States…” In context, we could infer that this refers to people who not specifically member of al-Qaeda or the Taliban but support them and generally give them aid. However, C’mon! These are politicians we’re talking about. Words have meaning, and the more vague a word is, the more it can be misapplied and the law of which it is part gets abused.

From the Senate floor, PRIOR TO THE BILL’S PASSAGE, Senator Lindsey Graham (R) of South Carolina said, “[Section] 1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.” In other words, the bill itself is written in such a way as to permit the President to use the military to arrest, interrogate and indefinitely detain US Citizens. Senator Graham neglected to remember that the authority to detain is not limited by due process or the Constitution.

Is it absolutely clear to you that say Republicans voicing their opinion about a deranged-socialist-wannabe king-who-may-not-even-be-constitutionally-eligible-democrat President are not, in fact, “associated forces that are engaged in hostilities against the United States”? Are you absolutely certain that under a Republican President, the OWS crowd doesn’t also fit the definition as contained in Section 1031? Remember that Janet Napalitano has already identified the Tea Party as a "homegrown terrorist group" and others have classified Christianity as a terrorist organization. Of course it’s preposterous! But, that doesn’t mean it didn’t or won’t happen.

In June, the same Defense appropriation bill had a different bill number, S. 1253, with different language in section 1031. In June, section 1031 included this paragraph:
(d) Constitutional Limitation on Applicability to United States Persons- The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States except to the extent permitted by the Constitution of the United States.
Sometime between June and December 1st, this protection was removed. Consequently, unlike previous versions of the bill, Section 1031 of S. 1867 does NOT restrain the President from bypassing due process and indefinitely detaining US Citizens merely on suspicion of aiding “terrorism.”

As you may know, the bill passed 93-7. Most of the Senators, I suspect thought it was just another Defense Appropriations bill and so did not bother to read it.

It is a frightening consideration. No amount of partisanship can alter the truth; nor can the establishment of either party escape the scrutinizing eye the public now has on them.

Today, 13 December 2011, the negotiators have announced an agreement on the bill. In order to assuage the President (yes, this President, the Communist-in-chief) and "prevent a veto (of a bill that Carl Levin said the President wanted)," they provided an executive waiver. According to the article: "The waiver would allow the president to transfer a suspect from military to civilian custody if he chooses."

You tell me, why does the President need a waiver to be able to transfer a suspect from military to civilian custody? Don't you think that's just a little bass-ackwards?

Furthermore, such a power can and should only be entrusted to a man of virtue, one who will not use it to imprison his political opponents and other detractors. Do you really think Obama is virtuous enough not to target you? If you're a Democrat do you want to trust that a Republican president will not target you? I don't trust either of them. In other words, this power should not be entrusted to any ONE man. That’s why the power to declare war is Article 1 Section 8 of the Constitution which pertains to the Legislature, not the Executive.

I am no expert, but I have read this bill enough to know that Mr. McCarthy is wrong about Rand Paul’s position on the subject. We need good men like Rand Paul, Mike Lee, and others who will stand for what is right even when it disagrees with their own party or the bulk of the nation. While I am sure that Rand Paul recognized the potential for the Military to arrest private citizens then detain them indefinitely without due process was an extreme position to take, I am also sure Mr. Paul knows that is the reason he is a Senator—to take the extreme position in protecting the Liberty of US Citizens, and I thank him for it.

At the end of the day, US Citizens and legal residents, regardless of ethnicity, religion, or political persuasion, who are suspected of a crime, regardless of magnitude, should have their day in court.

I stand with Liberty and with the Constitution, not a party and not a candidate.
God Bless and Merry Christmas!!