A National Defense Act or how to undermine the US Constitution?

A National Defense Act or how to undermine the US Constitution?

Dr. Aref Assaf/NJ Voices 12/09/2011 6:55 AM

Is America the land of the free or the land of fear? Theslow erosion of our fundamental human and civil rights has reached its summit,and the consequences should worry us all.

The United States Senate has just passed a resolution thatas currently drafted, gives authority to the US military to indefinitely detainpersons, even American citizens arrested on American soil or overseas withoutcharge or trial. In other words, the federal government has the ability toopenly detain American citizens, here or overseas, for their entire liveswithout so much as a single charge -denying US citizens their Article IIIrights to a jury trial. All it needs to do is declare you a terrorist- no proofneeded and due process observed.

Tucked inconspicuously in the 682 pagesof the, NationalDefense Authorization Act for Fiscal Year 2012 (NDAA), the Bill under thetitle 'Detainee Matters' in section 1031 and 1032, Congress has essentiallygiven the Department of Defense the explicit power to take civilians intomilitary custody and to indefinitely detain people suspected of terrorismactivities with no charges or trial. People in Egypt, Tunisia, and Syria haveengaged in revolutions to replace these undemocratic and unjust practices.

No doubt, codifying indefinite military detention into lawis one of the most egregious developments since the passage of the PATRIOT Actin 2001. A close read of the relevant sections means that all control would betaken out of the hands of civilian-controlled judicial system, and placed intothe secretive and unaccountable domains of the American military. Are theSenators who signed onto the legislation calling for a military takeover of ourjustice system? Until now, the Department of Justice, the state and local lawenforcement agencies have had the primary responsibility and the appropriatetraining to enforce anti-terrorism laws within the United States. The NDAAwould, in the case of many civilian suspects, remove these entities from theprocess of investigation, arrest, criminal prosecution, and imprisonment andcede such powers over to the military.

Section 1031 of S. 1253 would be the first time in more than60 years that our so-called representatives in Washington would allowindefinite detention of American citizens, with no charges or trial withoutCongressional authorization. If there was a case where liberty has beenforsaken for temporary security as Ben Franklin so eloquently warned, this Billis a prime example.

The US Senate has thus acted to render irrelevant theessence of our legal and judicial foundation: habeas corpus. According to Article Iof the Constitution, it is a judicial mandate that requires that a prisoner bebrought before the court to determine whether the government has the right tocontinue detaining them. The individual being held or their representative canpetition the court for such a writ. The current Senate bill has in effectendorsed the notion that the government can do whatever it likes to any citizen,it merely suspects individuals of being involved in terrorism. And since theso-called war on terrorism is an open-ended war and knows no geographicaldemarcations, the entire framework of the constitution could disappear througha sinkhole. Do not be surprised when a terrorist attack is committed or is imminent,our government would authorize soldiers to break into our homes undeterred,round up any citizens the government deems suspicious, and deny them anyrecourse. We used   to condemn countriesfor engaging in these practices against their own citizens. And now here we are doing it in these UnitedStates.

The Senate bill would let the government lock up any citizenit says is a terrorist, without the burden of proving its case to anindependent judge, for the lifespan of a not-so clearly defined war. Andbecause the Senate used the bill that authorizes funding for the military asits vehicle for this dramatic constitutional claim, many Senators found an easyexcuse to vote for the bill. But even if the intent of the legislationwould leave the civil liberties of an overwhelming majority of Americansuntouched, the checks and balances are inadequate. Even if we accept supportiveanalysis of the two sections in full, we have to assume two things. First, thegovernment will never make a mistake and, second, the government will never exceedits power. These are not very tenable expectations, which is why the nation's FoundingFathers were prudent not to consider them. Now, in section 1031(b) (2), I donot see the requirement for a civilian judge to issue a warrant. So it appearsthis legislation directly violates the Fourth Amendment of the Constitutionwith regard to those rights which are inalienable, according to the Declarationof Independence, and should be inviolate as your birthright as an Americancitizen. Also, despite the SixthAmendment's guarantee of a right to trial, the Senate bill would let thegovernment lock up any citizen it swears is a terrorist, without the burden ofproving its case to an independent judge, and for the lifespan of an amorphouswar that conceivably will never end.

Is it lawful for the president to order any American to beheld indefinitely as a terrorist, without formal charges, evidence presented inopen court, a trial by jury, or a standard of "guilty beyond a reasonabledoubt"? The U.S. Senate has ruled this to be a valid power. The shame ofthe Senate is evident by the number of Senators who voted for the bill: Fortyeight Democrats and forty-four Republicans and one Independent. New Jersey'stwo Senators, Robert Menendez, and Frank Lautenberg voted for the bill and madeno public denouement of the unconstitutional sections.

It is worth noting that  Senior Department of Justice,Department of Defense, and former administration officials warn theseprovisions will be a severe blow to our national security efforts andcounterproductive to counter terrorism measures. Many Senators have soeloquently spoken against the sections in addition to strong statements fromleading civil rights organizations. Senator Al Franklin(D-MN) represent this view, he said, "I fear the detention provisions inthis bill forget the lessons we learned from the mistakes we made when weinterned thousands of innocent Japanese, Germans, and Italians, or when wedestroyed the lives of supposed communist sympathizers with nary a shred ofevidence of guilt."

Fortunately, the Houseversion of the bill (H.R. 1540) does not include the troublesome language.But we fear that when the two bills are merged, these sections will remain.

Most importantly, President Obama has threatened to veto the bill if it containsthe problematic language. PresidentObama, citing serious legal and policy concerns, has threatened to veto thebill if the two provisions are not removed. In a recent memo to the Senate, theadministration asserted that, "applying this military custody requirementto individuals inside the United States, as some Members of Congress havesuggested is their intention, would raise serious and unsettled legal questionsand would be inconsistent with the fundamental American principle that ourmilitary does not patrol our streets." It is time for the citizens tospeak up for their rights before they are gone..

Ending The Christian "Pacifist" Argument On Firearms

By Clayton E. Cramer & David B. Kopel

It is not uncommon, when concealed carry laws are debated before legislative bodies, for representatives of liberal organizations such as the National Council of Churches to show up and announce the "moral" opposition to concealed carry on behalf of "the religious community." But reflexive hostility to the lawful use of force for legitimate defense is hardly the only moral position that may be held by a sincerely religious person.

The Book of Exodus specifically absolves a homeowner who kills a burglar.  The Sixth Commandment "Thou shalt not kill" refers to murder only, and does not prohibit the taking of life under any circumstances; notably, the law of Sinai specifically requires capital punishment for a large number of offenses.  A little bit earlier in the Bible, Abram, the father of the Hebrew nation, learns that his nephew Lot has been taken captive. Abram (later to be renamed "Abraham" by God) immediately called out his trained servants, set out on a rescue mission, found his nephew's captors, attacked and routed, rescuing Lot. (Genesis 14). The resort to violence to rescue an innocent captive is presented as the morally appropriate choice.

Most gun prohibitionists who look to the Bible for support do not cite specific interdictions of weapons (there are none) but instead point to the general passages about peace and love, such as "Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also" (Matthew 5: 38-39); "Love your enemies and pray for those who persecute you" (Matthew 5: 43); and "Do not repay anyone evil for evil." (Romans 12: 17).

None of these exhortations take place in the context of an imminent threat to life. A slap on the cheek is a blow to pride, but not a threat to life. Reverend Anthony Winfield, author of a study of Biblical attitudes towards weapons, suggests that these verses command the faithful not to seek revenge for evil acts, and not to bear grudges against persons who have done them wrong. He points to the passage "If it is possible, as far as it depends on you, live in peace with everyone" (Romans 12: 18), as showing an awareness that in extreme situations, it might not be possible to live in peace.

Further evidence that the New Testament does not command universal pacifism is found in the missions of John the Baptist and Peter, both of whom preached to soldiers who converted. Neither John nor Peter demanded that the soldiers lay down their arms, or find another job. (Luke 3: 14; Acts 10: 22-48).

John did tell the soldiers "Don't extort money, and don't accuse people falsely," just as he told tax collectors "Don't collect any more than you are required to." The plain implication is that being a soldier (or a tax collector) is not itself wrong, so long as the inherent power is not used for selfish purposes.

Of course most gun prohibitionists do not see anything wrong with soldiers carrying weapons and killing people if necessary. But if--as the New Testament strongly implies--it is possible to be a good soldier and a good Christian, then it is impossible to claim that the Gospel always forbids the use of violence, no matter what the purpose. The stories of the soldiers support Winfield's thesis that the general Speace and love" passage are not blanket prohibitions on the use of force in all circumstances.

Is an approving attitude towards the bearing of arms confined to professional soldiers? Not at all. At the last supper, Jesus' final instructions to the apostles begin: "When I sent you without purse, bag, or sandals, did you lack anything?"

"Nothing," the apostles answer.

Jesus continues: "But now, if you have a purse, take it, and also a bag; and if you don't have a sword, sell your cloak and buy one." He ends by observing "what is written about me is reaching its fulfillment."

The apostles then announce, "Lord, behold, here are two swords," and Jesus cuts them off: "That is enough." (Luke 22: 36-38).

Even if the passage is read with absolute literalness, Jesus was not setting up a rule that every apostle must carry a sword (or a purse or a bag). For the eleven, two swords were "enough."

More importantly, Jesus may not have been issuing an actual command that anybody carry swords, or purses, or bags. The broader, metaphorical point being made by Jesus was that the apostles would, after Jesus was gone, have to take care of their own worldly needs to some degree. The purse (generally used for money), the bag (generally used for clothing and food), and the sword (generally used for protection against the robbers who preyed on travelers, including missionaries, in the open country between towns) are all examples of tools used to take care of such needs. When the apostles took Jesus literally, and started showing him their swords, Jesus, frustrated that they missed the metaphor, ended the discussion. The metaphorical interpretation is supported by scholarly analysis, and seems to best account for the entire conversation.

Even when reduced to metaphor, however, the passage still contradicts the rigid pacifist viewpoint. In the metaphor, the sword, like the purse or the bag, is treated as an ordinary item for any person to carry. If weapons and defensive violence were illegitimate under all circumstances, Jesus would not have instructed the apostles to carry swords, even in metaphor, any more than Jesus would have created metaphors suggesting that people carry demonic statues for protection, or that they metaphorically rape, rob, and murder.

A few hours after the final instructions to the apostles, when soldiers arrived to arrest Jesus, and Peter sliced off the ear of one of their leaders, Jesus healed the ear. He then said "No more of this" (Luke 22: 49-51) or "Put your sword away" (John 18: 10) or "Put your sword back in its place, for all who draw the sword will die by the sword" (Matthew 26: 52). (The quotation is sometimes rendered as "He who lives by the sword will die by the sword.") [129]

Jesus then rebuked the soldiers for effecting the arrests with clubs and swords, for Jesus was "not leading a rebellion." The most immediate meaning of these passages is that Jesus was preventing interference with God's plan for the arrest and trial. Additionally, Jesus was instructing the apostles not to begin an armed revolt against the local dictatorship or the Roman imperialists. Jesus had already refused the Zealots' urging to lead a war of national liberation.

Do the passages also suggest a general prohibition against drawing swords (or other weapons) for defense? The versions of the story recounted in Luke and John do not, but the version in Matthew could be so read.

If Matthew is analyzed along the lines of "He who lives by the sword will die by the sword," the passage is an admonition that a person who centers his life on violence (such as a gang member) will likely perish. On the other hand, a translation of "all who draw the sword will die by the sword" could be read as a general rule against armed violence in any situation.

The best way to understand the Bible, most theologians would concur, is not to look at passages in isolation, but instead to carefully study passages in the context of the rest of the Bible. If the single line in Matthew were to be read to indicate that to draw the sword is always wrong, then it would be difficult to account for the other passages which suggest that drawing a sword as a soldier (or carrying a sword as an apostle) is not illegitimate. Looking at the passage of Matthew in the context of the rest of the Bible would, therefore, look to the passage as a warning against violence as a way of life, rather than as a flat-out ban on defensive violence in all situations.

A 1994 document produced by the Vatican's Pontifical Council for Justice and Peace states:

In a world marked by evil and sin, the right of legitimate defense by armed means exists. This right can become a serious duty for those who are responsible for the lives of others, for the common good of the family or of the civil community.

The Catholic Church recognizes people as saints because (among other reasons), the lives of saints are considered to worthy of study and emulation. February 27 is the feast day of Saint Gabriel Possenti. According to The One Year Book of Saints, as a young man in 19th-century Italy, Francesco Possenti was known as the best dresser in town, as a "superb horseman," and as "an excellent marksman." The young man was also a consummate partygoer, who was engaged to two women at the same time. Twice during school he had fallen desperately ill, promised to give his life to God if he recovered, and then forgotten his promise. One day at church, Possenti saw a banner of Mary. He felt that her eyes looked directly at him, and he heard the words "Keep your promise."

Possenti immediately joined an order of monks, taking the name Brother Gabriel. The main incident for which Saint Gabriel Possenti is remembered was this:

One a summer day a little over a hundred years ago, a slim figure in a black cassock [Possenti] stood facing a gang of mercenaries in a small town in Piedmont, Italy. He had just disarmed one of the soldiers who was attacking a young girl, had faced the rest of the band fearlessly, then drove them all out of the village at the point of a gun....

[W]hen Garibaldi's mercenaries swept down through Italy ravaging villages, Brother Gabriel showed the kind of man he was by confronting them, astonishing them with his marksmanship, and saving the small village where his monastery was located.

Saint Gabriel Possenti's "astonishing marksmanship" was displayed after he had just disarmed the soldier. The mercenaries' leader told Possenti that it would take more than just one monk with a handgun to make the mercenaries leave town. The saint pointed out to the mercenaries a lizard which was running across the road. Possenti shot the lizard right through the head, at which point the mercenaries decided that discretion was the better part of valor; they obeyed Possenti's orders to extinguish the fires they had started and to return the property they had stolen. They then fled the village, never to be heard from again.

Jewish law comes to the same conclusion as the Vatican Pontifical Council: "If someone comes to kill you, rise up and kill him first," commands the Talmud.  Bystanders are likewise required to kill persons who attempting rape.  While there is a duty to self-defense, the duty to defend others is seen as prior.

The view that forcible resistance to evil attack is itself evil has serious implications: Patrick Henry and the other founding fathers were wrong to urge armed resistance to the British Redcoats; the Jews who led the Warsaw Ghetto revolt against Hitler were immoral; Jeffrey Dahmer's victims would have been wrong to use a weapon to protect themselves; Saint Gabriel Possenti was a paragon of evil; Abraham should not have rescued his kidnapped nephew; and police officers who fire their guns to protect innocent people are sinful.

Consider the situation of a mother in a rough Los Angeles neighborhood, moments after an escaped psychopathic murderer has broken into her house. The woman has good reason to fear that the intruder is about to slaughter her three children. If she does not shoot him with her .38 special, the children will be dead before the police will arrive. Is the woman's moral obligation to murmur "violence engenders violence," and keep her handgun in the drawer while her children die? Or is the mother's moral duty to save her children, and shoot the intruder?

The view that life is a gift from God, and that permitting the wanton destruction of one's own life (or the life of a person under one's care) amounts to hubris is hardly new. As a 1747 sermon in Philadelphia put it:

He that suffers his life to be taken from him by one that hath no authority for that purpose, when he might preserve it by defense, incurs the Guilt of self murder since God hath enjoined him to seek the continuance of his life, and Nature itself teaches every creature to defend itself. 
 

Whatever their disagreements on other matters, the natural rights philosophers who provided the intellectual foundation of the American Revolution saw self-defense as "the primary law of nature," from which many other legal principles could be deduced.

As the great Supreme Court Justice Louis Brandeis wrote: "We shall have lost something vital and beyond price on the day when the state denies us the right to resort to force..."

Leading criminal law scholars have emphasized a different, less philosophical, point: that victims protect the entire community when they kill a dangerous criminal rather than leaving him free to prey on others. To theorists such as Bishop, Stephens and Pollock "Sudden and strong resistance to unrighteous attack is not merely a thing to be tolerated ...as a necessary evil [but is] a just and perfect" right. A good citizen attacked has "a moral duty" to use all force necessary to apprehend or otherwise incapacitate criminals rather than to submit or retreat.

Underlying the assertion that use of force to defend innocent life is immoral is the presumption that persons who use such force are "selfish." To the extent that social science can shed any light on this presumption, the presumption turns out to be exactly backwards. A study of "Good Samaritans" who came to aid of victims of violent crime found that 81% "own guns and some carry them in their cars. They are familiar with violence, feel competent to handle it, and don't believe they will be hurt if they get involved."  Are these people inferior moral beings who "engender violence"?

In any case, the claim that as a moral or practical matter a crime victim should rely on the government for protection can be raised only if the government has an obligation to protect the victim. And quite clearly under American law, the government has no such obligation.



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