The National Defense Authorization Act funding national defense and updated every December, despite a few modifications, continues to “require the military to hold suspected terrorists linked to al-Qaida or its affiliates, even those captured on U. S. soil, indefinitely” and without trial, on the say so of the military through the president alone. Moreover, even U.S. citizens could be removed to Guantanamo Bay, Cuba, against their will and deprived of their constitutional rights. The law gives no protection from a revolving definition of terrorism to anti-government, perhaps even tea partiers.
The threat of potential incarceration without recourse to a lawyer, judge and jury is very serious. It violates Article III, Sections 2 and 3 of the Constitution. “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.” It also emasculates the fourth, fifth, sixth and eighth amendments to the Constitution. Allowing the military to perform police duty previously rendered by civil authorities is unconscionable in a free society.
The Fourth Amendment deals with searches and seizures and reads in part “… no warrants shall issue, but upon probable cause, supported by oath or affirmation …” Warrants give civil authority the power to arrest only when the reason for the search, probable cause, has been reviewed and authorized by an elected judge who has given an oath to uphold the Constitution. He stands between the plaintiff and the defendant as the protector of constitutional law. There is no role for the military, even with a president’s authorization. Freedom dies when this amendment dies.
The Fifth Amendment has several parts that are affected by the National Defense Authorization Act, but space limits my coverage to just a couple. Infamous or serious crimes mandate a grand jury, 12 or more citizens to evaluate the evidence before proceeding, which will not exist in a military arrest and extradition to Guantanamo Bay process. Moreover, one cannot “be deprived of life, liberty, or property, without due process of law.” Due process is the civilian judicial system.
The Sixth Amendment deals with criminal court procedures where “the accused shall enjoy the right to … a public trial, by an impartial jury of the state and district wherein the crime shall have been committed … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense.” The National Defense Authorization Act destroys the Sixth Amendment to the Constitution for those for whom the president thinks are enemies of the state. There will be no “impartial jury,” no “obtaining witnesses in his favor” and no “counsel in his defense,” and Cuba is hardly within “the state and district wherein the crime shall have been committed.”
Finally, the National Defense Authorization Act obliterates the Eighth Amendment for those the president and the military define as terrorists. The protection against cruel and unusual punishment for them ends and torture becomes justified. The military will not care about excessive fines or bail, also parts of the Eighth Amendment. The possibility of “indefinite detention,” or transfer to an unnamed foreign entity for unspecified purposes under military rather than civilian jurisdiction, is “cruel and unusual punishment.” As is having a missile fired upon you by a predator drone based upon secret evidence presumed to be true by one man—the president.
Sadly both Democrats and Republicans, despite their oath to preserve the Constitution, are responsible for this act. With bipartisan support it is unlikely to be reversed. But there is another just as powerful way found in the 10th Amendment to return to the Constitution. The use of the Liberty Preservation Act, “which bans participation with or assistance in any way with any federal act which purports to authorize the indefinite detention of a person within the United States.”
Virginia, home of Declaration of Independence author, Thomas Jefferson, and the father of the Constitution, James Madison, was appropriately the first state in the Union to nullify the National Defense Authorization Act in a 96-4 and 39-1 vote in its House and Senate respectively. Done March 1, 2013, just two months after Obama signed it into law.
Alaska joined Virginia in July, followed by California in October of the same year. Governor Jerry Brown stated, “It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of any federal law that purports to authorize indefinite detention of a person within California.”
Michigan followed Dec. 27, 2013. Appropriately, it was the first state in the Union to use the 10th Amendment to defy the unconstitutional Fugitive Slave Act of 1855, which refused to return runaway slaves to the South and their masters. Michigan will not participate in “holding a U.S. citizen without habeas corpus.”
According to the Tenth Amendment Center, a non-partisan organization that keeps track of state nullification efforts, “Sixteen states have introduced or passed non-compliance resolutions or bills resisting the NDAA.” They also provide a model for resistance called the Liberty Preservation Act for other states wishing to implement this part of the Constitution. Texas proposes the toughest penalties on federal agents attempting to implement NDAA law in their state, a jail term “not to exceed one year, a fine of not more than $10,000, or both the confinement and the fine.”
Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.