Friday, January 13, 2012

Griffin Misleads on NDAA (Part 1 of 3 on NDAA)


Congressman Tim Griffin is a lawyer by trade, so he ought to know better than to make the claims he does about the NDAA.   This act is a far more serious violation of your rights than even the awful “Obamacare” requirement that you purchase health insurance.    Let me say this again, the NDAA of 2012, which was supported by most Democrats and almost all Republicans, including our entire Arkansas federal delegation, is a far greater infringement of your rights than Obamacare.    It represents a serious degradation of habeas corpus, and a violation of the fourth, fifth, and sixth amendments, as well as a defacto loss of the seventh.  
Our ruling class seems very nervous.   I suppose I would be too if I had allowed the Federal Reserve to create trillions of dollars out of thin air and essentially give it to multi-national banks and associated corporations while telling Joe Six-Pack that the new money is a debt he now owes and that he needs to sacrifice his Social Security, Medicare, Education, etc. to pay it back.   I suspect that is what is coming as the magnitude of the looting becomes manifest. 
Fraud is an interesting crime.  For a while, the perpetrators and the victims both think they have the money, and so everyone is happy.  Bernie Madoff’s “clients” were happy even for years after Madoff stole their money, because they did not realize it was gone.   Today’s political class has stolen our money, but like Madoff they are able to arrange things for a while to make it appear to us that the money is not gone.  Unlike Madoff, they are in position to make preparations so that once the fraud is discovered and people do become upset, they are not arrested for ripping us off, but rather we are to be arrested if we complain about it too strenuously.
But I digress.  I am going to give you the facts.  It is then up to you to determine which of us is more honest with you, me or Tim Griffin.    One of us has to be feeding you misinformation.   At the end of it, I invite you to decide whose credibility is lost, mine or his.
Griffin in his piece assures us that the law merely “codifies what the U.S. Supreme Court already said: The detainee provisions in the 2012 NDAA in no way undermine a U.S. citizen’s due process or habeas rights, as some have claimed.”     He is talking about the decision(s) in Hamdi v. Rumsfeld.
If the NDAA really did just “codify” “what the court already said” about habeas corpus in Hamdi, then among those “some” claiming it is an infringement would Supreme Court Justice Antonin Scalia (joined by liberal John Paul Stevens). 
Scalia is revered by many as the most brilliant legal mind in this nation.   According to the Wiki article in his powerful dissent on the case “Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well-meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.” 
I’m with Scalia on this one.  They should not be in the business of crafting a “due-process lite” for these situations, which is exactly what they were trying to do. 


(continued on the jump)... 

2 Comments:

Blogger Mark Moore (Moderator) said...

Griffin is off base so far as he insinuates that the court even had a united single ruling. Different groups had different ideas about what “due-process lite” ought to look like. This renders meaningless Griffin’s assurances that the NDAA only “codifies what the Supreme Court has already said” about the indefinite detention of American Citizens without trial. The Court said all kinds of things!

And isn’t it backwards anyway to try and interpret court decisions (made in a narrow set of circumstances) in law. It’s supposed to be the other way around!

And just like the courts should not be in the business of crafting a “due-process lite”, Congress should not be in that business either. Yet that is exactly what they did, using every loophole the varied opinions in Hamdi could provide. For example, the Justices in the plurality suggested that hearsay evidence from the government be made acceptable, and that the burden of proof did not have to be on the government in such cases. Independent judicial review was also not a requirement under “due-process lite.” Instead of judges, someone that the executive branch decided was “impartial” could decide whether or not you should be locked up without trial basically forever.

Hamdi was caught in Afghanistan on an actual battlefield. But the NDAA uses that decision, which was made on that set of facts, and then declares the entire United States, including your church, your next Tea Party Protest, and the chair in which you are now sitting to post your anti-government comments on Facebook to be “the battlefield.”
Do you, as Griffin claims, retain the right to “challenge the legality of your detention” under the NDAA he voted for? Not really. They have changed the rules so that even though there is still a process for challenges, the “right” is all but meaningless. The truth is that you cannot challenge your detention on the same basis as you had before, and the new rules are so slanted towards the executive as to make the challenge process a farce.

Now you can be detained forever, until the “war on terror” ends, without a trial, based on hearsay evidence, and without the burden of proof being on the government to show why you should be held. You will never see a real judge once detained under this act. There would be some kangaroo “military tribunal” created as a formality to finalize the decision. And really, if hearsay evidence counts and the burden is on you to prove you are innocent rather than on the government to prove that you should be held, why should the secret tribunal ever let anyone go?

This is not the end of the NDAA’s assault on your constitutional and God-given rights, just the beginning. I hope to discuss more in another article, and also described why a couple of “fig-leaf” provisions that are being used as evidence that this law does not change much are wrong. My goal in this one was to show how the right to challenge your detention by the executive branch in front of a real judge under the rules of law we are used to has been lost. And it’s both the Republicans and Democrats that are doing it to us.

5:15 AM, January 13, 2012  
Blogger Scott Widen said...

I asked Womack at a Tea Party Candidate forum that with his support of the Patriot act, NDAA and CISPA if he believed in the Constitution since all 3 of those in one way or another violated our rights. He reply during a long winded reply was that lawyers vett the bills to ensure they are constitutional.

On the NDAA vote, besides voting yes Womack voted for Gohmert-HASC amendment not the Amash amendment. Gohmert-HASC does not guarantee due process for Americans. Gohmert amendment lets them hold you under military detention without the chance of habeas petition for up to 30 days. Under current or before they passed it in the house you could file the instant a your are detained. Hmm what could they do to you during those 30 days?

Here is what Womack has to say about the NDAA the other day with his on the front newsletter.

"A provision on detainees expressly stating that nothing in the Authorization for Use of Military Force or the National Defense Authorization Act for Fiscal Year 2013 shall be construed to deny the availability of the writ of habeas corpus for any person who is detained in the United States pursuant to the Authorization for Use of Military Force."

Nice how Womack can say this without the detail of holding you for up to 30 days.

See here for more information:

http://amash.house.gov/sites/amash.house.gov/files/051812NDAAclosingargument.pdf

8:32 PM, May 26, 2012  

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