National Defense Authorization Act Can Jail You for Belligerence Acts?

December 31, 2011, President Barack Obama signed into law the National Defense Authorization Act (NDAA). The Act was passed in the House of Representatives on May 26, 2011 by a vote of 322 to 96. The Act was passed in the Senate on December 15, 2011 by a vote of 86 to 13. Below is an excerpt from the Act, the wording of which makes it legal to incarcerate United States citizens without recourse to any form of judicial process. Essentially these words say that if the government deems any person to have committed a “belligerent act” that person can be detained indefinitely without trial.

Subtitle D — Counterterrorism SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE. (a) IN GENERAL. — Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) 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. (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.

What is a “Belligerent Act”?

pepper sprayFor the purposes of defining what a “belligerent act” is, with respect to a US citizen, how does the government differentiate between an act of war against the United States vs. a lawful protest against the government? Prior to this Act, such a distinction would have to be decided in a court of law by a jury of a citizen’s peers. With the signing of the NDAA, the government is claiming the right to decide this unilaterally, without any judicial proceedings and no legal representation afforded to the accused.

Can the US government now proclaim that the constitutionally protected act of protest against the government is a “belligerent act” and legally lock up those who participate in such a protest?

Did these protesters deserve to be pepper sprayed. They did not wrong other than exercising their rights. This is how Government and cops treat it’s citizens.

Constitutionally Speaking

Constitutional RightsThe provisions of the NDAA highlighted above are blatantly unconstitutional. The Fourth Amendment to the Constitution prohibits warrantless seizures of the person or property of US citizens. The Fifth Amendment prohibits the depriving of US citizens of “life, liberty, or property without due process of law.” The Sixth Amendment includes the right to a “speedy and public trial by an impartial jury.” [Source]

These are the most basic, most essential protections of human liberty upon which the United States was founded. It would be no exaggeration to claim that the primary purpose of those who founded the United States was the creation of a nation where exactly these protections were guaranteed to all citizens. And with the signing of the NDAA, the present government of the United States has claimed the legal right to kill these constitutional protections.

Rule of Law

Our history books teach us (for now) that the United States of America was founded as an act of rebellion against the tyranny of dictatorship. In other words, the United States was founded by commission of a Great Belligerent Act against the ruling government of the day. From the second paragraph of the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Source

The primary founding principle of the United States is that of the Rule of Law. Rule of Law means that, rather than being ruled by the arbitrary dictates of a powerful man, we are ruled, each of us, by a common set of laws that are the same for everyone, everywhere, all the time. These laws are agreed upon through a public democratic process and they are written down for everyone to see. The Constitution of the United States is the basis of all US law and it lays out the essential precepts of the Rule of Law.

Under the Rule of Law and under the Constitution, citizens of the United States are presumed innocent until deemed guilty of a crime by a jury of their peers. Under the Rule of Law and under the Constitution, no citizen of the United States can be incarcerated without recourse to legal counsel and the justice system in a timely manner. These principles are what separate the Rule of Law from dictatorship. These principles are what separate the Rule of Law from totalitarianism. These principles are what separate the Rule of Law from every political regime that the U.S. has rhetorically scorned over the history of its existence as a nation.

It is precisely the inability of those in power to impose their will arbitrarily on the less powerful that makes Rule of Law mean RULE of LAW.

Does it Matter?

Think it doesn’t really matter and that protesting this act is alarmist and paranoid? This Act may not have been directly used to incarcerate U.S. citizens to date, but when principle is compromised in a nation founded on principle, then what is left of that nation?

On the day of the signing of the Act, Anthony D. Romero, ACLU executive director said:

“President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law. The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.” [Source]

The point is that this law really makes it possible for a US government, whether this one or a future one, to lock up US citizens who are protesting against, and threatening to replace that government. Even if this law were never used, it radically changes the relationship between the government and the citizens of the United States. Unless and until it is repealed, this Act gives the government legal grounds to use the military and the threat of indefinite military detention without trial to put down any form of protest that it decides is a threat to itself by simply defining the protest as a “belligerent act.”

Think about this: those in Congress and the President have taken a lot of political heat for passing this law and a host of other recent legislation that curtails the Constitutional rights of U.S. citizens. Why would they take the political risk of offending their constituents if they were not anticipating a day when they would need to protect themselves against those constituents?

We perceive the National Defense Authorization Act itself as a belligerent act committed against the people of the United States by the government officials who have sworn a solemn oath to serve the citizens and uphold the Constitution.

We all should protest and demand the repeal of Subtitle D, SEC. 1021 of the National Defense Authorization Act, along with any other legislation that abrogates the protections of human liberty guaranteed under the Constitution.

Are you awake Yet?

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