by Timothy Baldwin, J.D.
approx. 1,360 words
The article I read in the Kalispell’s Daily Inter Lake entitled, “A False Alarm Over S. 1867”, posted on December 7, 2011, strikes me as a display of cheap journalism at best. Its analysis and conclusions fall short in many ways. Unfortunately, its fallacies concern a bill very important to our country and constitution—Senate Bill 1867.
I have written a separate article on this subject as well and have gone into some detail about the constitutional significance of this bill. This article should be read in conjunction with this one. See my article.
In particular, there are four very glaring fallacies in the Daily Inter Lake article. Consider them and my responses in order.
Fallacy #1. The article presumes we can trust our government with arbitrary “laws of war” power against U.S. Citizens.
The article states,
“[W]e admit we get a little panicky when bipartisanship breaks out in D.C…. [but] there is a virtually nil chance that you or your neighbors will be swept up off the street and locked up in ‘indefinite detention’ unless you are indeed engaged in war against the United States…Moreover, we would encourage everyone to think about the oath of office that many federal officials take, including all members of Congress.”
According to this Daily Inter Lake article, we may have reason to get “panicky” “when bipartisanship breaks out in D.C.”. This is a horrible start of logic display. Is that really the standard by which we judge bills? I thought it was the constitution.
The article assures us that we and our neighbors will not be swept off the streets and locked up “unless you are indeed engaged in war against the United States” (emphasis added). The basis for this assertion, however, is not reconciled with the text of the bill, the targets of which include those the military deems “belligerent”.
Moreover, using the word “war” does nothing to invoke war powers of the federal government. Despite the fact that the constitution requires a declaration of war from Congress to define the scope and enemy of the war, there is no definition of what “engaged in war against the United States” means. Is this like the “war on drugs” or the “war on poverty”? Does it include actions that the government deems threatening to its own power structure?
The reality is, “belligerent” actions do not include only acts of war as the article presupposes. It includes any “hostilities” towards the United States regardless of “terrorist connections”. Of course, these terms are unilaterally defined by only one branch of government with no checks from the judiciary. In short, the article presumes we should trust the President with this kind of discretionary law-of-war power.
The article completely ignores, as well, the explicit rules in the United States Constitution regarding domestic enemies; namely, the powers regarding treason and suspension of habeas corpus to provide for the public safety. (See my article.)
The article significantly strays from our federal republic’s foundation, which was premised upon the mistrust of people in political power. The Federalist Paper writers repeated this principle as a fundamental basis for limiting the federal government, especially the branch holding power to destroy life.
Fallacy #2. The article states the bill exempts US Citizens from being detained and prosecuted under laws of war.
The article states,
“if the thousands of people forwarding scary emails about the bill would stop and actually investigate, they would find out that in large measure U.S. citizens are exempted from the law” (emphasis added).
If Daily Inter Lake “would stop and actually investigate, they would find” that their position is incorrect. The bill does not require detainment of US Citizens, but instead it gives discretionary power for US Citizens to be detained under laws of war. Thus, the plausibility of serious abuse is still real.
Where power is discretionary, it is vested and complete. Defying all sense of logic, the Daily Inter Lake finds comfort in that. Yet, what government has ever declined to use discretionary power to its fullest degree? The Daily Inter Lake article shows ignorance of human nature, history, and political science.
Fallacy #3. The articles states “good Americans” would never be targets; and targets will only be actual “terrorists” who engage in acts of war against the United States.
The article states,
“(1) [S]omebody may be locked up, but we are confident that it won’t be good Americans… (2) And Section 1031, which relates to the use of the armed forces to detain covered people…has a very narrow purpose of describing detention ‘under the law of war’ of people who either participated in the terrorist attacks of Sept. 11, 2001, or is a member or “substantial supporter” of al-Qaida, the Taliban, or “associated forces that are engaged in hostilities against the United States or its coalition partners” (numbers added).
As to part (1) of the statement:
Why should we be so confident, as the article suggests, that only “bad Americans” will be targets of this power? Who defines “good” and “bad” here? And why is the judicial branch of government excluded from checking and balancing this determination?
After all, the Southern Poverty Law Center (SPLC) has expressly named the following kind of people as potential “homegrown terrorists”: supporters of Ron Paul, Chuck Baldwin, and Bob Barr; those who oppose the “collection of federal income tax”; those who believe in the fundamental importance of the second amendment—meaning, State militias; those “who question the legitimacy of the federal government”; those who oppose illegal immigration. (See source here.). The SPLC, of course, is the Department of Homeland Security’s lap dog and feeds “expert” information about “terrorism” through their Fusion Centers. We have seen their trickery even here in Kalispell.
To the SPLC, these people are not “good Americans”; they are potential terrorists. Given that the SPLC is closely connected with the executive branch of the federal government, why should we not be concerned?
As to part (2) of the statement:
The Daily Inter Lake article fails to mention the broadest part of the bill’s definition of “covered persons” who are subject to this discretionary “law of war” power. The bill includes “belligerents” as “covered persons”, which is not defined in the statute.
Looking at other statutes (i.e. Military Commissions Act), the word “belligerents” is a much broader term than all of the others used to define “covered persons” and does not necessitate “acts of war” against the United States. A “belligerent” may have nothing to do with the “narrow purpose” under the laws of war.
Just the opposite, instead of being a “narrow purpose”, the bill broadly expands the use of the “law of war” power against US Citizens the military deems “belligerent”. Why the Daily Inter Lake would exempt this law of war application is very peculiar since the applicable provisions of the bill “are only two small sections”.
Fallacy #4. The article states, that there are only 2 provisions in the over 900 page bill assures us we are safe from arbitrary power against “good” Americans.
The article states,
“Remember, this is a gargantuan 926-page bill, but there are only two small sections that have people up in arms, or nearly so. But it is those two exact sections that provide the evidence that there is nothing to panic about…Seems pretty plain to us” (emphasis added).
The shortness of the provisions in comparison to the overall bill has no basis in logic. What does it matter how short the provisions are? The bill could have been as short as, “the President has the power to arrest and detain any person he deems to be a ‘belligerent’.” Short and sweet. So what? Should that make us less concerned?
Moreover, since it is so short, one would think that the obvious errors in interpreting the bill would not have been made by the Daily Inter Lake.
It is disappointing to see our city’s daily paper spread this kind of shallow thinking. And it is very difficult to take this kind of journalism seriously when they spread this misinformation and illogic fallacies, especially on a subject so important.