Gridlock and the Bill of Rights, NDAA Style

First, Jeff Jacoby comments on Congressional gridlock. A good column.

‘Dysfunctional’ government is a feature, not a bug :: Jeff Jacoby: “But our democratic republic wasn’t designed for speed or legislative efficiency.

The Framers of the Constitution never expected Congress to clear the decks for sweeping presidential action. They weren’t troubled by fears that America would be rendered “ungovernable” by the ease with which new laws or major policy changes could be delayed or derailed. What the smart set bewails today as “gridlock” or “brinksmanship” or an “agenda of pure nihilism,” the architects of the American system regarded as indispensable checks and balances. They knew how flawed human beings can be, and how ardently propelled by their passions and ideals.

That was why they regarded restraint — not speed, not deference to presidents, not bipartisan cooperation, not administrative expertise, not popular opinion — as the linchpin of their constitutional plan. “Impressions of the moment may sometimes hurry [Congress] into measures which itself on mature reflection would condemn,” Alexander Hamilton wrote in Federalist 73. They may not have envisioned Supercommittees, Gallup polls, or MSNBC. But they knew that presidents and lawmakers would always be under pressure to act too fast, do too much, decide too quickly.

So it was essential, Hamilton said, that hurdles and roadblocks be incorporated into the constitutional structure — ‘to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.'”

Second is an even more important piece from Dr. Ron Paul. Once again, under the guise of fighting terrorism, our civil liberties are under attack.

I’ll take a liberty of copying Dr. Pauls entire column here, it’s just too good to slice-up.

The NDAA Repeals More Rights: Little by little, in the name of fighting terrorism, our Bill of Rights is being repealed. The 4th amendment has been rendered toothless by the PATRIOT Act. No more can we truly feel secure in our persons, houses, papers, and effects when now there is an exception that fits nearly any excuse for our government to search and seize our property.  Of course, the vast majority of Americans may say “I’m not a terrorist, so I have no reason to worry.” However, innocent people are wrongly accused all the time.  The Bill of Rights is there precisely because the founders wanted to set a very high bar for the government to overcome in order to deprive an individual of life or liberty.  To lower that bar is to endanger everyone.  When the bar is low enough to include political enemies, our descent into totalitarianism is virtually assured.

The PATRIOT Act, as bad is its violation of the 4th Amendment, was just one step down the slippery slope. The recently passed National Defense Authorization Act (NDAA) continues that slip toward tyranny and in fact accelerates it significantly. The main section of concern, Section 1021 of the NDAA Conference Report, does to the 5th Amendment what the PATRIOT Act does to the 4th.  The 5th Amendment is about much more than the right to remain silent in the face of government questioning.  It contains very basic and very critical stipulations about due process of law. The government cannot imprison a person for no reason and with no evidence presented or access to legal counsel.

The dangers in the NDAA are its alarmingly vague, undefined criteria for who can be indefinitely detained by the US government without trial.  It is now no longer limited to members of al Qaeda or the Taliban, but anyone accused of “substantially supporting” such groups or “associated forces.”  How closely associated?  And what constitutes “substantial” support?   What if it was discovered that someone who committed a terrorist act was once involved with a charity?  Or supported a political candidate? Are all donors of that charity or supporters of that candidate now suspect, and subject to indefinite detainment?  Is that charity now an associated force?

Additionally, this legislation codifies in law for the first time authority to detain Americans that has to this point only been claimed by President Obama. According to subsection (e) of section 1021, “[n]othing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” This means the president’s widely expanded view of his own authority to detain Americans indefinitely even on American soil is for the first time in this legislation codified in law.  That should chill all of us to our cores.

The Bill of Rights has no exemptions for “really bad people” or terrorists or even non-citizens.  It is a key check on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. The NDAA attempts to justify abridging the bill of rights on the theory that rights are suspended in a time of war, and the entire Unites States is a battlefield in the War on Terror.  This is a very dangerous development indeed. Beware.

Related links:
Congress, Obama Codify Indefinite Detention by Sheldon Richman