by Timothy Baldwin, J.D.
A Follow Up Article Regarding My Interview With Lars Larson
I was pleasantly and respectfully interviewed by Lars on the Lars Larson show on December 13, 2011 at 6:20pm Mountain Time. (Listen to TimBaldwin 121411Lars Larson Show.) The subject of the discussion was Senate Bill 1867, entitled the National Defense Authorization Act for Fiscal Year 2012. This bill was drafted and sponsored by Senators John McCain (R-AZ) and Carl Levin (D-MI). SB 1867 passed the Senate and has caused much concern by many in the United States, just like other bills these two men draft and sponsor regarding Military Authorizations (e.g., SB 3081, 2010).
Military Indefinite Detention Under ‘Laws of War’
In particular, sections 1031 and 1032 of the bill provide for mandatory detention under the “laws of war” of “covered persons”, although section 1032 provides that military detention of United States citizens is not required but is discretionary. “Covered persons” to be detained under the “laws of war” are defined as:
“(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces” (emphasis added).
“Covered persons” may include United States citizens who have committed a “belligerent act”. The determination is made unilaterally by the executive branch of the federal government. There are no judicial checks to the indefinite military detention of United States citizens.
‘Belligerent Act’ Gives Broad Power to Military
A “belligerent act” is not defined in this statute. However, the term is defined in similar bills and laws, such as the Military Commission Act, which defines a “belligerent” as a person who:
“1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.”
This term, “belligerent”, essentially replaced the otherwise known term, “enemy combatant”, used in the Military Commission Act. “Covered persons” is a broad concept, not one of limitation or strict use. It is no wonder that constitutional scholars have commented on this type of definition and use of Military Power in our backyard as follows: “[this bill is] probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades.” (See, source.)
Moreover, the evolution of these types of military authorization bills is getting broader and broader. A history of this bill’s origin and evolution has been reported before and is worth researching.
The Interview and Larson’s Description
During the interview, Larson portrays a tone of support for SB 1867 and describes the United States Constitution as not being a “suicide pact”. Larson proposes scenarios where it would be absurd to let individuals carry out a plan of attack on the United States by affording them constitutional due process. (observe: Larson may have been playing the “devil’s advocate”.)
Larson describes, for example, a situation where a person is caught with a bomb in the commencement of an act of war upon the United States. Larson suggests a conclusion, though he did not state it directly: “the United States government should have the authority to hold that person indefinitely without affording him constitutional protections of due process. Otherwise, the constitution would be providing the means for mass destruction upon the citizens.”
Larson is correct that such a person should not be allowed to continue his plan of terrorism, but he has a hard time believing that the United States Constitution provides for both the protection of the accused and the citizens of the United States and seems to think that we need SB 1867 to protect us.
A More Detailed Response to Larson’s Concerns
This following is a more detailed response to those who believe that the United States needs to have SB 1867-like power to deny due process to protect the United States from a terroristic crime or act of war.
1. Evidence is Required in All Criminal or War Acts
The constitution’s due process requirements are simply stated: (1) evidence is required to detain an accused, and (2) the evidence must be reviewed by the judicial branch.
Can the government detain a United States citizen under the “laws of war” and outside of the constitution’s protections without evidence? Is evidence required in cases where the government is imprisoning and accusing people of the most egregious acts and intents upon mankind?
-Where evidence of an act of war exists, then due process requirements will not prevent the government from protecting the United States.
-Where evidence does not exist, why is the government imprisoning United States citizens through Military “laws of war”?
Does due process really get in the way of the United States protecting itself? What hypothetical scenario can be imagined that would justify indefinite military detention of a United States citizen for a “belligerent act” where there is no evidence?
If evidence of this act of war exists, then even with due process protections in place, the government could obtain court orders to prevent the release of the accused, as well as preventing the accused from communicating with others to execute the conspiracy.
2. Due Process Protects the Accused and the United States
Due process requirements of the constitution are such that a court can order the unconditional detention of an accused where circumstances require. The court’s power is correlative to the facts/evidence. Where there is evidence of the kind Larson proposes, a court would unconditionally detain the accused given the potential mass threat to society.
In addition, the court would use its powers of equity to establish the conditions of the accused’s detention to prevent irreparable harm. Since the court’s equity power is commensurate with the evidence, the court would ensure the proper detention of the accused.
Furthermore, another protection for the United States exists. The government could appeal any court order it feels did not sufficiently protect the safety of the United States. In the facts Larson describes, it is unimaginable that the trial court and all appellate courts, including the United States Supreme Court, would order conditions of release or detention that would jeopardize the safety of the United States.
3. The “X” Factor of the Accomplice Attorney
To Larson, however, there is a loophole in the due process protection. Assuming the court unconditionally detained the accused and the government had sufficient evidence to secure his detention, Larson describes one other possibility of mass destruction: namely, an accomplice attorney.
Since the constitution guarantees the right of the accused to an attorney, Larson suggests that the accused would use his attorney and the attorney could facilitate carrying out the conspiracy. The implication is that the accused would need to be detained without the ability to communicate with anyone, including his attorney.
This leads us to the next point in the discussion.
4. Constitution Provides for Treason Charges, as Well as Suspension of Writ of Habeas Corpus
Article 3, Section 3, Clause 2 states, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Article 1, Section 9 states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Larson’s act-of-war description falls under the definition of “treason”. Likewise, it falls under the category of “public safety may require [the suspension of the writ of habeas corpus].”
Therefore, the Executive branch would be able to charge the citizen with Treason given the evidence of the overt act; and Congress or the Courts (and perhaps the President) would be able to suspend Habeas Corpus as to those accused since “the public Safety [requires] it.”
Where the government charges the accused with an act of war against the United States (i.e. Treason); where there is sufficient evidence for the court’s consideration; and where Habeas Corpus is suspended, the government’s power to prevent the accused from further executing the conspiracy sufficiently exists.
And of course, laws can be passed by Congress to carry out these duties and functions where they are “necessary and proper”.
The Constitution adequately provides for the protection of the accused’s rights as well as the public safety.
We cannot ignore the United States Constitution in the name of “safety”. It provides for our safety. However, if there is a flaw in the United States Constitution relative to these matters of “terror”, then the people should amend it. We tread on dangerous ground where power is assumed. This was one of the strongest warnings the founding fathers gave us.
Yet, too many Americans are willing to permit the federal government to assume these powers of military authority within the United States against our citizens. Congress’ attempt to place the United States under the “law of war” and defining “acts of war” against the United States in ways that do not comport to the United States Constitution are unnecessary; and worse, they are dangerous.
The “war on terror” began in 2001 without a declaration of war or letter of Marque or Reprisal. Congressman Henry Hyde told the President to use his discretion in the war. Now, Congress is providing the President with a law of discretion against United States citizens with no oversight of the judicial branch.
The federal government has been exacerbating our relationships with foreign countries, and now, they are bringing war to our backyard. They continually broaden power, definitions, applications, and time-frames. They propose that the only way they can fight the “war on terror” is for United States citizens to continually give up more liberty and constitutional protections.
Perhaps we can put the United States on the right track if Congressman Ron Paul were elected President of the United States.