“[T]o bereave a man of life, or by violence to confiscate his estate without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person by secretly hurrying him to [jail], where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary force.”
William Blackstone, Commentaries on the Laws of England
After reading up on the disaster that is the National Defense Authorization Act (NDAA) that was recently passed by Congress, I could make a laundry list of the problems with it. There are so many major problems that I was having trouble coming up with an easy way of presenting them all. Then it dawned on me – why not create an actual list! (brilliant, I know)
Before I get to the list, let’s start with a little background. The NDAA is controversial because its original text had a provision that might… well… destroy our due process rights a little. That’s kind of a big deal because due process is what protects American citizens from arbitrary imprisonment, politicians using the courts to retaliate against opponents, and all kinds of other things that oppressive, out-of-control governments might do.
In a nutshell, the right to due process guarantees that anytime the government is going to strip you of any portion of your life, your liberty, or your property it has to go through a fair process that justifies why that is an appropriate action and allows you an opportunity to defend yourself. If the NDAA is signed by President Obama – depending on which lawyer you talk to – it might allow him to use the military to indefinitely detain anyone he suspects of being a terrorist. Without charging them with a crime. Without giving them a trial.
If that sounds a little medieval to you, that’s because it is. And here’s a short list of reasons that the NDAA and the process surrounding it pose a serious danger to our freedom:
1. There should be no ambiguity about violating our rights -
“[T]he glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful.”
William Blackstone, Commentaries on the Laws of England
There is still a lot of debate over whether this bill strips Americans of their due process rights. Some members of Congress insist that they amended the language to make sure that American citizens can’t be detained. But some lawyers still aren’t convinced that final bill is any better.
The fact that there is any confusion at all is completely unacceptable. When the issue being discussed involves the possibility of destroying the rights of American citizens, no member of Congress should settle for anything less than absolutely unmistakeable clarity that our rights are to be protected without exception.
In this case, not only are our Congressmen accepting the ambiguity, they seem to be creating it intentionally. When discussing the effect the new amended language would have on the possibility of the NDAA allowing the indefinite detention of Americans, Senator Dianne Feinstein said:
“this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.”
In other words, Congress isn’t going to actually do anything proactive to protect our rights. They are just going to do what they have to do so that they can get home for Christmas on time and leave all that freedom stuff for the courts to figure out.
We’ve got some real staunch defenders of liberty in Washington D.C. today, don’t we? Apparently this group of politicians is so cowardly that they can’t even bring themselves to take a stand on whether American citizens should have due process rights. Unbelievable.
2. It takes more than a law to change the Constitution -
It’s extremely frightening that so many members of Congress would take a chance when it comes to protecting our due process rights. But even more troubling for me is the fact that so many Congressmen believe – and the public is willing to accept – the idea that the Constitution can be over-ridden by just passing a law.
That’s the whole point of having a Constitution – to keep the government from just doing whatever the heck it wants. The Constitution is the voice of the people declaring exactly what powers the government has permission to use. A law is basically the voice of the government. In other words, the people created this government – we are the parent and it is the child.
But if Congress can pass a law that takes precedent over the Constitution, that means the voice of the government is more important than the voice of the people in this country. That is a situation that would absolutely destroy the idea of limited government and take our freedom with it.
If members of Congress truly feel the need to violate the due process of some Americans, the people of this country gave them a process for amending the Constitution (see: Article 5). If our Congressmen aren’t willing to go through the amendment process, then they need to remember who is in charge in this country and live by the rules we have laid out for them.
3. Laws that probably won’t be abused aren’t good enough -
Most people seem to believe that the Congressmen who voted for the NDAA had honorable intentions and have a hard time imagining that our government would actually start imprisoning people at random. Because of that, they have a hard time getting too riled up over this bill.
Do I honestly believe that Barak Obama is going to start rounding people up next year and sending them to Guantanamo Bay? No I don’t. Then again, I never thought our government would try to run a car company or force me to buy health insurance either. Sometimes people surprise you.
And that’s the point. We have no way of knowing who will be running our government in 10, 15, or 20 years. So passing laws based on what we think our current politicians would do or because we trust a sitting president is extremely dangerous. We need to pass laws while also considering the flaws of human nature.
William Grayson explained this concept perfectly when the Constitution was being debated in the Virginia Ratifying Convention:
“Power ought to have such checks and limitations as to prevent bad men from abusing it. It ought to be granted on the supposition that men will be bad; for it may eventually be so.”
So whenever we grant power to the government, we should limit that power as if we thought the people in office were going to try to abuse it. There will be a lot of people who hold office over the years and eventually we are bound to elect a crook. When that bad person takes office, if there aren’t proper checks on his power he is going to use it to destroy our freedom.
When you look at it that way, somehow it doesn’t seem like such a good idea to give the president unchecked power to put American citizens in prison without a trial.
During a speech to the House of Representatives in 1807, Representative William Armisted Burwell perfectly demonstrated the mindset our modern representatives should have taken when approached with the idea of indefinitely imprisoning American citizens. In this case, Burwell is discussing a proposal to suspend habeas corpus, but his arguments would have been just as relevant had he made them in the House earlier this month about the NDAA:
“What, in another point of light, would be the effect of passing such a law? Would it not establish a dangerous precedent? A corrupt and vicious Administration, under the sanction and example of this law, might harass and destroy the best men of the country. It would only be necessary to excite artificial commotions, circulate exaggerated rumors of danger, and then follows the repetition of this law, by which every obnoxious person, however honest he may be, is surrendered to the vindictive resentment of the Government. It will not be a sufficient answer, that this power will not be abused by the President of the United States. [I don’t believe President Jefferson would] abuse it, but it would be impossible to restrain all those who are under him. Besides, [I] would not consent to advocate a principle, bad, in itself, because it will not, probably be abused.”
In other words, it’s never ok for a Congressman to vote for flawed legislation because he’s pretty sure that it probably won’t be abused. That is an incredibly careless approach to take to a situation that could lead to the violation of someone’s right to liberty.
Think about it, would you feel comfortable walking up to a random person at the mall and handing him the keys to your house along with directions on how to get there? Of course not. Sure, chances are that this person isn’t a crook and won’t use the keys to rob your home, but it’s disconcerting just to know that he even has that opportunity.
If it’s that uncomfortable to think about another person being able to take our possessions, why are so many Americans cool with giving the president the opportunity to take away our freedom?
This is why so many of us are furious over the current NDAA. Remember, we aren’t only giving this power to Barak Obama. We are also setting a dangerous example for every president that comes after him. It comes down to common sense – if you go to the mall enough times and give your keys to enough strangers eventually you’re going to come across a crook. The same is true in government – if you give enough politicians an opportunity to destroy your freedom eventually you’re going to elect one who will actually do it.
Members of Congress need to lose the cavalier attitude and start writing laws in a way that limits the possibility of abuse as much as humanly possible. It’s unacceptable for them to even allow the opportunity for this section of the NDAA to be misinterpreted in a way that poses a danger to our due process rights.
4. Issues affecting our rights should be debated publicly -
If you decided to do something that you knew was wrong, where would you do it? Probably somewhere private, where no one could see you, right?
That’s why it is very telling that some members of Congress chose to slip this section on indefinite detention into a bill that they thought would pass without much scrutiny. They are trying to hide something they know is wrong. After all, if they were proud of this provision and honestly thought that the American people would support it, why not publicize it or even make it a separate bill so everyone can see what a great job they’re doing?
But even a week after it’s passage, a Yahoo search brings up virtually no mainstream media coverage of the controversy surrounding the NDAA so clearly our politicians are making no attempt to inform the American people about it. This is just one more glaring example of the fact that many members of Congress believe that they are part of a political aristocracy that knows better than the rest of us unwashed masses.
Unfortunately for them, our government was created to serve the people – not the other way around. Let’s not forget that the people of this country are the source of all the government’s power. So any time legislation is being considered that could possibly have an effect on our rights or how they are interpreted, Congress has an obligation to have an open and extremely public debate that involves getting feedback from the public.
Nearly everything about the way this bill was handled is shady and endangers our freedom. As it stands today, Congress passed a law:
- that may or may not strip Americans of their due process rights (no one knows for sure),
- that absolutely violates the Constitution, and
- that might give the President unimaginable power to destroy the liberty of every American citizen (but they’re pretty sure it probably won’t be abused).
No wonder no one in Congress wanted us to know about this.