the Federal Farmer

Dear sir,

Now that the passage of the  National Defense Authorization Act for Fiscal Year 2012 - and its signature by  the President – is all but certain, many Americans from across the political spectrum who value their liberty and freedom are angry, outraged and afraid that American citizens are now officially fair game for indefinite detention without the right to an attorney or a speedy trial by an impartial jury – as they should be.

Or should they?  Perhaps not – it seems that the bill the President will be signing has some changes that may  have neutered, or at least mitigated, the part of the bill that was most threatening to our liberty as Americans. I am not an attorney and I’ve been out of politics for a while, so I am not confident in my own interpretation of the new words, so I’ll simply present my non-expert case for your consideration.

I was as outraged over this bill as anyone, perhaps more, when I first read through it. The section I was most concerned about was Title X, Subtitle D, Section 1031, which would allow our military to detain and lock up American citizens indefinitely, without access to an attorney, without the right to a speedy public trial by an impartial jury, and worse, the potential to be turned over to the “custody or control of the person’s country of origin, any other foreign country, or any other foreign entity“, merely for being suspected of  supporting “al-Qaeda, the Taliban, or associated forces“.

Associated forces?  I may not be a legal wunderkind, but even I can spot dangerous vagueness – the kind of ambiguity that can get you or I put into the gulag we call Gitmo for just about anything.  It surely doesn’t require a degree in rocket surgery to understand how unclear verbiage in the law can cause all kinds of nasty consequences…intended or unintended.

I had been drafting a letter about this very bill when I heard the news today that the President had caved in on his veto threat.  I decided it was time I finished this letter, so I went back to the Library of Congress THOMAS site to grab the relevant passages from section 1031 that I wanted to quote.  When I did so, I found that a new subsection had been added that wasn’t there in the earlier version I had read.  A new subsection (e) was inserted and the old (e) is now (f). The new (e) reads as follows:

(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.

I see good news and potential bad news here.  First the good news – I think it’s pretty clear that “existing laws and authorities“, specifically the 5th, 6th and 14th Amendments, as well as Article III Section 3 of our Constitution, supersedes and makes moot section 1031 of this bill.

The bad new depends on how you interpret the words.  Is this subsection applicable only within our borders, leaving us stripped of our Constitutional rights and subject to capture (or drone attack) anywhere else? Or is it applicable to US citizens and lawful resident aliens anywhere and only those “other persons” who are captured or arrested in the United States?  That will be up to you and the legal beagles to determine.  Personally, I am hoping for the best and preparing for the worst, as always.

The sad thing is that we even need to wonder. Not only should we expect clear and concise language in the laws drafted by our representatives in government, but we should NOT expect those representatives to be including  language in proposed laws that so obviously threaten our Constitutional and human rights in the first place. What are they thinking?  Who are they representing?

I look forward to your replies.

Your’s &c.
the Federal Farmer