Are Americans safe from the threat of indefinite detention and should local representatives do something to ensure the right to trial?
The Department of Defense’s budget is funded with the annual passage of The National Defense Authorization Act. With each year’s passing Congress adds more provisions to the law, compounding the already controversial nature of its intent. In 2012, Congress added Sections 1021 and 1022 to the bill, which codified the indefinite military detention without charge or trial of citizens for the first time in American history.
The application of the “law of war” covers all U.S. citizens. The law purports to reaffirm the 2001 Authorization for Use of Military Force (AUMF), which was a poor substitute for a legitimate declaration of war for the invasion of Afghanistan.
The NDAA has three targeting profiles describing persons against whom military force may be applied.
The first profile is virtually identical to that of the AUMF, which is limited, retrospective and seeks retribution against those connected to the Sept. 11, 2011, terrorist attacks. The second is unlimited, prospective and independent of the Sept. 11 attacks, which is the “War on Terrorism” provision. A third is an overlap of the first two profiles and relates to a segregated class of targets. It divides the description even further into citizen and non-citizen.
The AUMF targeting profile relates to “person” and in no way limits “person” to non-citizens. Likewise, the NDAA relates to “covered person” which is not limited to non-citizens.
Numerous court cases relating to the AUMF detention authority involve U.S. citizens and the Supreme Court has made it clear that such detention authority can include citizens. In 2004, the court heard two of those cases, HAMDI v. RUMSFELD and RUMSFELD v. PADILLA.
Allied forces captured Hamdi, a U.S. citizen, fighting with Taliban forces on a battlefield in Afghanistan and later relinquished him to U.S. forces. The court indicated that the AUMF allowed the detention of U.S. citizens under the factual scenario of Hamdi. Padilla was a U.S. citizen detained arriving at the Chicago airport, which is considered a port of entry, and was detained before he formally crossed the “border.” The basis of his military detention was that he had trained with enemy forces in Pakistan.
After the Boston Marathon bombing in April 2013, the president and the main Senate supporters of the NDAA called for the surviving bomber, a U.S. citizen, to be declared an “enemy combatant,” so he would not be afforded his constitutional rights. This status is the application of the “law of war” to a person.
Attempts are underway by several organizations and individuals to nullify those unlawful sections of the NDAA. On Jan. 13, 2012, former New York Times reporter Christopher Hedges and other activists filed a lawsuit against the Obama administration and members of Congress. The plaintiffs alleged that the law “gives the government the authority to label journalists and political activists who interview or support outspoken critics of the Obama administration’s policies as ‘covered persons,’ meaning that they have given “substantial support” to terrorists or other “associated groups.’” Attorneys for the government never raised the issue of the government’s ability to detain the citizen plaintiffs indefinitely under the detention provisions of the NDAA based on their citizenship.
Meanwhile groups like Oath Keepers and PANDAA are trying to convince local boards and councils to pass a resolution titled The Restoring Constitutional Governance Resolution that opposes the specific illegal segments of the NDAA.
Regretfully, the self-proclaimed uninformed and constitutionally illiterate city councilors of Coos Bay rejected their sworn duty and failed to pass this resolution against these unconstitutional provisions. They refused to do the very least of their duties and vote on it, but that would have created a record of their failure. The most revealing reason they refused to act was the warning by the city’s attorney that the federal government has a way of seeking retribution against cities and counties that oppose their will, which in all reality further validates the argument for the resolution.
The citizens of Coos Bay deserve more than what is being delivered by City Hall. They deserve the protections guaranteed by the Bill of Rights; the protections that city councilors swore to defend when they took their oath of office according to Article XV section 3 of the Oregon Constitution.
If you still believe this is not a local issue, think again.
Tom McKirgan of Oath Keepers intends to file a city initiative against the NDAA, in conjunction with members of PANDAA, Americans for Prosperity of Coos County, The Republican Party of Coos County and The Coos County Watchdog. People who want to take back their rights and get involved can sign up at www.CoosCountyWatchdog.com.
This OP-ED submission written by: Richard D. Frym, General Counsel of The Patriot Coalition; Connie Martin; Tom McKirgan, Regional Director of Oregon Oath Keepers; Steve Noorlander, Chair of the Americans for Prosperity of Coos County; Shane Ozbun, Oregon State Team Leader of PANDAA; Jason Payne, Chair of the Republican Party of Coos County; Stewart Rhodes, Founder of Oath Keepers; and Rob Taylor, Founder of the Coos County Watchdog.