It is very important that you quickly familiarize yourself with the language of a bill set for vote in the Senate today at around 11 am.  It was drafted in Secret by John McCain and Carl Levin, without a single hearing.  It is called the National Defense Authorization Act For Fiscal Year 2012.  Look at these sections.

What you will see is that the Senate is specifically granting authorization to the United States Military to arrest “any person” who has “committed a belligerent act” and then to detain them indefinitely, without trial.  Could this broad grant of power include the right to arrest “citizens” of the United States for “belligerence”?

Some have said that this language is a violation of the Posse Comitatus Act which was written to prevent the use of federal troops to enforce civilian laws.  But according to this scholarly piece written in 2000, the Posse Comitatus Act does far less than people think to prevent military action against citizens.

The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues. The plethora of constitutional and statutory exceptions to the act provides the executive branch with a menu of options under which it can justify the use of military forces to combat domestic terrorism. Whether an act of terrorism is classified as a civil disturbance under 10 U.S.C., 331–334, or whether the president relies upon constitutional power to preserve federal functions, it is difficult to think of a domestic terrorism scenario of sizable scale under which the use of the military could not be lawfully justified in view of the act’s erosion. The act is no longer a realistic bar to direct military involvement in counterterrorism planning and operations. It is a low legal hurdle that can be easily cleared through invocation of the appropriate legal justification, either before or after the fact.

So what does this new bill really do?  Senator Rand Paul and a minority of his colleagues voted in favor of an amendment to the bill which would have revised the provisions regarding detainees.

Rand debated John McCain over the issue, but a cadre of republicans under the leadership of Mitch McConnell, defeated the amendment Rand urged.


Judge Andrew Napolitano of FoxNews had this to say about the bill:

Equally as troubling was the revelation over Thanksgiving weekend that the Senate will vote on a proposal from Senator John McCain and Senator Carl Levin to permit the president to treat the United States of America – all states and territories – as if it was one huge battlefield and then utilize the military to arrest anyone the president feels is an enemy of United States. Such arrests would result of indefinite detention without trials or juries or judges or lawyers. It would permit this president and all successors to incarcerate indefinitely whomever he wished without charging the person with a crime. And it would permit him to do this to Americans by stripping us of our citizenship. He could even arrest those who are against him.

It gives the president more power over you than King George the Third had over the colonists who declared and won their independence from him. If you think we live in a police state now as I do, just wait until this president or any future president can get their hands on this power. This directly contradicts the constitution which guarantees due process, notice of charges, lawyers and witnesses and juries, a fair jury trial, right to appeal, a constitutional guarantee of health to all persons, no matter how serious the crime or weighty the evidence against them or what the president thinks. Any member of Congress who votes for this proposed legislation should be driven from office.

Some are now carefully considering the language of the bill and have concluded that it specifically excludes American Citizens from its provisions.

But, as a lawyer who has spent over 30 years reading legislation and watching as it is interpreted by courts, one thing about this bill sends ice water down my back.  The bill is so loosely drafted that it is wide open to horrifying application.

First, the bill permits indefinite military detention without trial.  This prevents those who claim illegal seizure from access to any tribunal in which to challenge that arrest.  And take no comfort in the thought that our military would never turn against us.  They take orders and execute them.

There is likewise no comfort in the hope that the use of this power will be limited to active terrorists.  It doesn’t take long for a series of news reports, even if untrue, leaked and properly placed to define a person.  Just ask Herman Cain.  What series of otherwise innocent actions and comments might someone weave together into a plausible tale which would rally public sentiment against a person?  All it would take would be one or two marginal cases before the rest of the nation would be afraid to speak out against the government.

The real control over people doesn’t come from arrest and execution, but from the fear of arrest and execution. As Stalin taught the world, fear is itself a prison of sorts perfectly suited for controlling large populations.

We can all agree that real terrorists should be arrested.  But what form of mayhem will be required under a law with such loose definitions, with no external controls (courts) and subject to the rights of government officials to excuse themselves from what few restrictions are written into the law by waiving them in their sole discretion?

You now have about two hours to make a decision.  It’s as if the Emergency Broadcast Network just told you that an attack on the USA would land in two hours.  What would you do then?  By this bill, is the U.S. Senate set to declare war on our citizenry?

I would suggest you get on the phone.  Here are the numbers to call:

Senator McConnell: Ky. Office – (502) 582-6304  Washington DC office: (202) 224-2541

Tell him you DO NOT want S.1867 to pass as written without clarifications regarding who can be detained and under what conditions of judicial review.  And remind him what Andrew Napolitano said:

“Any member of Congress who votes for this proposed legislation should be driven from office”.


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