An Obama Era unconstitutional power has landed in Trump's lap. And we should be very, very, very, scared.
Five years ago, on New Year’s Eve, the 2012 National Defense Authorization Act (NDAA) was signed into law. The NDAA is typically an unremarkable bill that authorizes funding for the U.S. Armed Forces. In 2012, however, it contained two alarming provisions that threaten the civil liberties of every American, Sections 1021 and 1022.
As described in Part 1 and Part 2 of this NDAA series, Sections 1021 and 1022 authorized President Obama, and now authorize President Trump, to order the arrest and indefinite detention--without charge or trial--of anyone labeled a “suspected terrorist” or “belligerent.”
Documents obtained from multiple federal agencies show just how dangerous and confusing these sections can be when interpreted and applied by the government. Congressmen, Air National Guard colonels, and even seven-year olds have been placed on terrorist watch lists after being classified as “reverent of individual liberty”, “suspicious of centralized federal authority”, “supportive of [Presidential candidates] Ron Paul and Bob Barr” or “insisting on paying with cash.”
In my interview with People Against NDAA (PANDA) founder Dan Johnson below, we discuss why this law is a dangerous violation of our civil rights, and what you can do to help get it repealed.
PANDA is the largest organization in the country battling the NDAA, indefinite detention without charge or trial, and mis-application of laws of war to American citizens. PANDA has advanced anti-NDAA legislation in more than 25 states and numerous local jurisdictions, including Oakland County, MI, Las Vegas, Nevada, and Sunbury, Pennsylvania. PANDA has also helped pass several key pieces of legislation across the nation protecting our rights.
Steve Mariotti: How can we reverse this erosion of our civil liberties?
Dan Johnson/PANDA: Education is PANDA’s number one priority. Millions of Americans are still completely unaware that their civil liberties slipped away from them on New Year’s Eve 2011. Congress passed the 2012 NDAA by 283-136 in the House and 93-7 in the Senate.
We have given nearly 100 presentations across the country educating Americans of all political stripes about the dangers of the 2012 NDAA. We have published viral videos and post regularly on a Facebook page, reaching millions of Americans. We have worked with the Patriot Coalition to hold educational briefings for legislators, law enforcement, and political parties, and we’ve written dozens of articles and op-eds.
There are frightening parallels in history to the NDAA. On February 27, 1933, in response to growing fears about “Communist terror,” the German government passed the Reichstag Fire Decree. The decree suspended provisions of the Weimar constitution that protected civil liberties, including the right to a speedy trial, the right to face your accuser, protection against search and seizure without a warrant, the right to assemble and the right to free speech.
The German people failed to protest this erosion of their civil liberties, and Hitler wound up with unprecedented power. Six and a half years later, he invaded Poland, and the tragic events of World War II began to play out.
Similarly, in response to growing fears of “Islamic terror,” President Obama signed the 2012 NDAA, even though Sections 1021 and 1022 violate 13 provisions of the U.S. Constitution. These include the right to a speedy and public trial, the right to face one’s accuser, protection against search and seizure without a warrant, the right to assemble, freedom of association, and free speech.
We have something, though, that the German people did not: A free press. After the Reichstag Fire Decree was signed, the German government moved to shut down newspapers and political parties critical of the new National Socialist government. They realized that if people were educated about the dangers of the Decree, they might form a successful resistance.
In the United States, although there have been numerous attempts to arrest journalists, silence news outlets, and punish sources, these have in large part failed. We still have freedom of the press, we can still speak our minds, and we have a new tool the German people did not: the Internet.
Our educational approach is three-pronged. First, since the 2012 NDAA was passed in relative secrecy, we need to make the American people aware that Sections 1021 and 1022 exist. We must give them the opportunity to debate whether any president should have the power to indefinitely detain, torture or even execute an American citizen on U.S. soil, or anywhere in the world, without due process.
Secondly, we must educate all Americans about what has happened every time we have given our government the authority to deem a group of people unworthy of Constitutional rights. During World War II, the Federal government detained over 120,000 Japanese Americans and people of Japanese descent in internment camps for years due to fears of “saboteurs.” Today, the internment is considered to have resulted more from racism than from any security risk posed by Japanese Americans. During the Cold War and the “Red Scare,” civil rights were suspended for anyone labeled a “communist sympathizer,” and thousands were arrested. Now, during the War on Terror, anyone the government deems a “terrorist” may be legally denied civil rights.
Finally, we must combat rising Islamophobia in this country. In order to violate the rights of its citizens with the support of the people, a government must first cast one or two minority groups as inhuman, and somehow unworthy of the civil rights in our Constitution. The German government ostracized, isolated and condemned as a communist sympathizer anyone deemed sufficient opposition to their policies. They played on the German people’s poor economic conditions, and scapegoated the Jewish people as the “other” causing the economic pain and suffering of “real Germans.”
When we allow one group to be stripped of its protections, we greatly increase the odds that the government will eventually, inevitably, strip all citizens of their civil rights. If we are to successfully roll back the 2012 NDAA’s violations of our civil liberties, we must refuse the government’s attempts to cast people who practice the Islamic faith as unworthy of their civil liberties.
SM: Beyond education, what is PANDA doing to fight the NDAA’s violation of our civil liberties?
DJ: Education without action does not create change. Most Americans know obesity is bad for your health, for example, yet over 67% of us are overweight or obese.
On February 21, 2012, we launched PANDA to take action. We were a small organization started in my college dorm room, with no money, resources, or connections. We came up with a plan, however, that has proven very effective:
Phase 1: Pass local ordinances that require local law enforcement to uphold the Constitution, and prohibit the application of the laws of war in that jurisdiction.
Phase 2: Encourage law enforcement to implement penalties in localities that have passed such ordinances for police officers who fail to comply with them.
Phase 3: Repeat this strategy at the state level, and eventually repeal the 2012 NDAA’s detention provisions at the federal level.
SM: Where have you been successful in getting ordinances passed so far?
DJ: At the local level to date, we have passed strong legislation in seven jurisdictions, including Albany, New York’s state capitol, and several cities in Idaho and Massachusetts. Between PANDA, the Patriot Coalition, the Tenth Amendment Center, and the Bill of Rights Defense Committee, we also have strong statements in more than twenty, including Las Vegas and San Francisco, CA.
At the state level, we have introduced or advanced more than fifty pieces of legislation in nearly thirty states including North Carolina, Maryland, Nevada, Tennessee, Missouri, Texas, Indiana, Idaho, Wyoming, Mississippi, Minnesota, South Carolina, Oklahoma, New Hampshire, Kansas, Louisiana, Arizona, Massachusetts, Maine, Missouri, Pennsylvania, Ohio, Colorado, Michigan, Montana, Washington, Minnesota, Iowa and Georgia. Virginia, Alaska and California. These states have all signed legislation into law opposing the 2012 NDAA.
SM: Why did PANDA focus on local ordinances? Why not simply work at the federal level to fix the NDAA?
DJ: Because congressional efforts to overturn the detention provisions of the 2012 NDAA have failed. PANDA supported the 2012 Smith-Amash amendment proposed by Adam Smith (D-Wash) and Justin Amash (R-Mich) as a real solution to the NDAA. The Smith-Amash Amendment would have banned indefinite military detention and military commission trials in the United States. This would have made clear that individuals apprehended on U.S. soil who are suspected of terror-related activities can only be tried in a civilian court with all the corresponding constitutional protections.
The amendment failed to pass the House of Representatives, where it was torpedoed by the House GOP. The vote was 205-217, with only 94 Republicans and 111 Democrats voting to restore our constitutional rights to a fair and speedy trial, probable cause, and due process.
Ron Paul (R-Texas) made a rare appearance on the House floor to voice his support for the Smith-Amash Amendment, noting: “I do not believe a republic can exist if you permit the military to arrest American citizens, put them in secret prisons and be denied a trial.”
Unfortunately, NDAA Sections 1021 and 1022 were erroneously represented as critical to national security. This has protected them from reasonable legislation such as the Smith-Amash amendment, which would have fixed these violations of American civil liberties without diminishing national security.
SM: PANDA uses the constitutional doctrine of “interposition” to get local “liberty” ordinances passed. How does interposition work?
DJ: Interposition is simple. Every person who holds office in our government, from your local sheriff to a Supreme Court Chief Justice, takes an oath to uphold the Constitution. Each sworn officer’s highest mandate is to defend the Constitution.
If any level of government attempts to violate the civil rights enshrined within the Constitution with an unconstitutional law--which is by definition null and void--it is the duty of all sworn officers to to interpose and prevent that action, in order to uphold the Constitution.
In 1798, just seven years after the ratification of the Bill of Rights, President John Adams signed the Alien and Sedition Acts into law. These acts prohibited most protesting, criticism of the government and criticism of the president.
In response, James Madison and Thomas Jefferson authored the Kentucky and Virginia Resolutions. In the Virginia Resolution, Madison, the “Father of the Constitution,” urged the states to uphold the Constitution by interposing against a rogue Federal government:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact... the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil…”
-Virginia Resolution, December 24th, 1798.
Chief Justice Marshall upheld the doctrine of interposition in Marbury v. Madison, writing “...the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument”
Clearly, the NDAA sections that suspend our civil rights are repugnant to the Constitution, and, as U.S. District Judge Katherine Forrest put it, have a “chilling impact on First Amendment rights.” Every “other department,” including police departments, have a responsibility, therefore, to oppose it.
SM: How can local jurisdictions use interposition to combat a federal law like the NDAA?
DJ: In 1793 and in 1850, as part of a compromise with Southern states, the Federal government passed two Fugitive Slave Acts. These laws mandated that anyone coming across escaped slaves return them to their masters.
Dozens of jurisdictions passed local liberty laws interposing against the Fugitive Slave Acts, and refused to return slaves. Thousands of people defied the law, saving the freedom and lives of tens of thousands of slaves.
In 1942, under Executive Order 9066, President Franklin Delano-Roosevelt authorized the indefinite detention of 120,000 Japanese-Americans. American military members, with the help of local law enforcement, went door-to door in coastal communities, rounding up Japanese families and sending them to internment camps for the duration of the war.
If local governments had adopted personal liberty laws like those used to interpose against the Fugitive Slave Acts, these could have been used in 1942 to prevent the Federal government from hauling Japanese-Americans off to internment camps.
Today, imagine the public outrage it will cause in a community that has passed local liberty ordinances if the Federal government violates those ordinances and arrests a citizen under the NDAA provisions. We believe such outrage will bring the NDAA issue to national attention, and force debate. Without having to flip hundreds of votes in Congress-- since the Federal government would never want to face off with a local sheriff on a civil-liberties issue--we could prevent the indefinite detention of a citizen simply by refusing to allow the Federal government to detain that person in that community.
It is also far easier for the citizens of a town to hold the local sheriff and police chief accountable, because they can be voted out of office. It’s much more challenging for the residents of a local town to attempt to hold a member of the military or Federal law enforcement accountable.
SM: How are local law enforcement officers reacting to your efforts?
DJ: Many excellent police officers support this, such as Worcester, MA Deputy Police Chief Edward J. McGinn, who told us that any laws or orders which “serve to violate the basic human rights of any citizen” would be met with “great resistance; perhaps more so than what a non-officer citizen would offer.”
Just as there must be punishments for officers who collude with criminals, however, it is necessary to pass policies with consequences for officers who participate in or allow the violation of our constitutional rights. Only then can the citizens of every community be confident that their constitutional rights will be protected by their local law enforcement. That is why Phase 2 of PANDA’s plan recommends that communities that pass local ordinances prohibiting unconstitutional detainment also implement penalties for officers who fail to uphold the ordinances.
SM: What about Phase 3, repealing the NDAA at the federal level?
DJ: Every person in America deserves the right to a fair and speedy trial by a jury of his or her peers. This fundamental protection was placed into our Bill of Rights because our nation’s founders never wanted to repeat the actions of the British government from which they were declaring independence. The British regularly labeled American revolutionaries “traitors”--the colonial equivalent of “ suspected terrorist” today--and hung them without so much as a show trial.
Every person in the United States should receive the same Fifth Amendment protections as the citizens in Albany, NY;Webster, MA; Middleton, ID, and other jurisdictions that have said “No!” to the Federal Government’s supposed authority to claim someone is a terrorist and therefore detain him or her without a trial.
The 2012 NDAA’s detention provisions must be interposed against at the state level and repealed at the federal level. Until they are, any American could potentially be picked up off the street and detained without charges.
We have been educating members of Congress, DC-based organizations, and other civil rights leaders about the dangers of the 2012 NDAA, but Congress responds most to the will of masses of the people. Once our educational efforts, and our local and state efforts, are successful, the Federal government will have no choice not only to repeal the law, but also to avoid using it or any similar claimed authority to violate our constitutional rights.
SM: How do you respond to those who argue that the NDAA would never be used against American citizens who have committed no crime, who aren’t “real terrorists,” or who aren’t doing something wrong?
DJ: That is exactly what former President Obama argued. He claimed he would not use the full powers accorded to him by the NDAA. In his signing statement on the 2012 NDAA, Obama said:
“The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.”
He added that “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”
That all sounds very nice, but the fact is that the 2012 NDAA is like a rattlesnake in a dark cave. We may hear it rattle, but we think it will never bite us. But one day, when the wrong president comes into office, or the wrong person is designated by the president to use this power, that rattlesnake will bite. And by then, it will be too late.
If you would like to help fight the NDAA, visit PANDA’s Take Back Your Town page here.
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