Monday, December 10, 2012

My controversial interview

If you haven't already seen my interview last week with TAC's legal analyst Blake Filippi regarding the legal implications of the Feinstein Amendment to the 2013 NDAA, please be sure to take a look. This is one my more controversial articles that I've done and as you can imagine many people have differing views on this one but please be sure to take a look.

The reason I do these interviews is because I feel it is important to have an open, transparent, public discussion about our national policy. This is, after all, a Republic which was founded to be a government of the People - not of Congressional committees and White House Office of Legal Counsel alone. A few highlights from my interview (read more here):

Danny de Gracia: A lot of our readers out there aren't familiar with what exactly the NDAA does or how it potentially impacts the way U.S. citizens will be treated by law enforcement or by intelligence agencies. Could you tell us for clarification what the current, status quo framework does and what it means in terms of the big picture for the average American?

Blake Filippi: It is a pleasure, Danny. I’m glad you all facilitate discussion of this most important topic. The short of it is that the USA has essentially been declared an active war zone with regard to allegations of supporting terrorism; where our most fundamental constitutional rights are undercut. What this means is that the President has been granted powers over the domestic citizenry that are normally reserved for active battlefields. To understand why this is so complex, please bear with me.

The current status quo is pursuant to the 2012 NDAA and the 2001 Authorization to Use Military Force because the 2013 NDAA has not been enacted yet. Since the 2001 AUMF, the Executive branch, under both administrations, has contended its War Powers include authority to indefinitely detain as enemy combatants, without charge or trial, all persons within the United States, including citizens.

Our Supreme Court has not ruled post- 9/11 whether persons captured in the USA may be indefinitely held as enemy combatants.  Then Congress passed the 2012 NDAA, which legislatively authorized the Executive’s professed domestic war powers, and then some.

Section 1021 provides the President with the authority to designate all persons – including citizens captured within the USA – as enemy combatants, whom the President unilaterally determines “substantially supported” Al-Qaeda, the Taliban, or “Associated Forces.”

Section 1021 is subject to abuse because the vague “substantial support” and “associated forces” are undefined. Importantly, Section 1021 does not require one’s substantial support to be knowing and willful.

Theoretically, under section 1021, the Florida flight school trainers of the 9/11 hijackers, a fertilizer dealer whose fertilizer is used in a terrorist’s bomb, and someone who unwittingly donates to a charity that funnels that money to terrorists, all may be designated as enemy combatants under the 2012 NDAA.

Of utmost importance is that section 1021 of the 2012 NDAA authorizes the “armed forces to detain [such] covered persons” pending disposition by the President according to the Law of War. Thus, the armed forces are purportedly authorized to detain all persons within the USA; an implicit and wholesale repeal of posse comitatus, the post-reconstruction ban on the military exercising a police function over the domestic civilian population.

Over the past year, we have since seen an expansion of military activities within the civilian population. Domestic military police are a dangerous proposition for our Constitutional Republic.

Section 1021 then expressly provides that the President may then dispose of such covered persons according to the Law of War, including indefinite detention without charge or trial, military tribunals and extraordinary rendition (the act of disappearing someone out of the country to a foreign government or entity). Such treatment violates a litany of fundamental rights enshrined in the Constitution’s 1st, 4th, 5th, 6th, 8th and 14th Amendments.

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