As if to further prove Jeffrey Tucker’s argument that “the [modern] state works to reverse progress in every possible way,” the feds have declared that any work to repair the pipelines will have to be done using equipment straight out of the 19^th Century. According to The Goldwater Institute, which has sued the US Forest Service on behalf of Tombstone, the city was told it would have to use “horses and hand tools to remove boulders the size of Volkswagens.”

The town currently relies on ground wells to survive, but there is an insufficient supply to protect the town in the event of more disasters. City manager George Barnes said their present situation “doesn’t allow for a building fire, a well-pump failure; it doesn’t allow for much of anything.”

At issue for the feds is the spotted owl, and other endangered species, whose habitat is in the mountains near Tombstone. Of course the fires and floods destroyed their habitat, but rules are rules, right?

While such legal challenges can be successful at times, they are hardly the only remedy available. Indeed, it can be argued that asking a federal judge, in a federal courtroom, to curtail a federal agency is one of the least effective and logically unsound ways to go about solving problems caused the federal government. But before we get into the details of how states and local organizations can free themselves from the grasp of federal bureaucrats, let’s examine first the problems in dealing with the feds on their own terms.

Money: it often comes down to who has more. The Goldwater Institute and similar organizations are not-for-profit entities, which means their funding is necessarily limited. By choosing to take the forestry service to court, they divert resources – money, energy, and time – away from other endeavors. In economic terms this is referred to as opportunity cost. And, it very well may be that those finite resources mentioned above could be put to better use elsewhere.

The federal government, on the other hand, is not limited by the same constraints as private institutions. The government isn’t actually paying any of the bills. In a sick twist of irony, the citizens of Arizona will be forced to help pay for the federal government’s defense, along with every other taxpayer in the country. It’s bad enough they have to pay the salaries of those standing in the way of recovery. Furthermore, the feds have no property at stake here, the way Tombstone residents do. The bureaucrat’s livelihood is not dependent on the outcome of the case in the same way that ranchers, real estate developers, and homeowners’ lives will be affected.

Even if money weren’t an issue, the system itself isn’t even set up in such a way as to ensure judicial impartiality. Tenthers are well-acquainted with the problems, but for the uninitiated, a brief summary: The federal courts are hardly an impartial venue, and federal judges aren’t exactly objective arbitrators. The federal government is a disputant in the case, so the idea that it should judge the outcome on its own turf is laughable when the analogue of two neighbors arguing over a boundary dispute is considered. If one’s brother is appointed the arbitrator, who could believe he won’t be naturally biased one way or another?

But even if The Goldwater Institute is ultimately successful with its suit, it could take many years to finally be resolved; by that time it may be too late. The whole issue was brought on as a result of wildfires and rainstorms. More bad weather could exacerbate the problems and ruin those struggling to hold on. Even if no further harm comes from Mother Nature, the fact that drinking water is barely available means that an extended trial and appeals process is equally unacceptable.

And what happens if the federal courts toss out the case or side in favor of the feds? What recourse will Tombstone have? Instead of even asking these questions, let’s move outside of that stupid box and refuse to throw ourselves at the mercy of politically well-connected lawyers in black robes. We should instead ask: what would a less costly and more effective solution look like?

Well, the state has already begun reasserting it’s authority over the natural resources found within its boundaries. A bill in the senate would essentially reclaim the mountain springs under dispute and allow property owners to restore infrastructure damaged last year. This is a good first step, having the state begin interposing on behalf of residents, but other options exist for those affected by this bureaucratic nightmare.

Municipalities could take similar action, either legislatively or in bypassing the legal system entirely and just beginning the repairs. A recent bill that went before Arizona governor Jan Brewer would have empowered sheriffs to act as a buffer between federal agencies and local citizens. Governor Brewer sided with the feds and vetoed the bill earlier this month, but such measures could be used in the future.

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Finally, there is something to be said of simply ignoring the decrees of the Forest Service and, rather than use such arcane equipment as horses and hand shovels, drive backhoes and bulldozers into the mountains and clear the mudslides out. Since when do we prostrate ourselves before federal agencies that, contrary to their stated purpose, are constantly undermining and usurping the rights of the people?

The issue here is not simply that an historic town may run out of water. The prevailing message coming from the feds is that individuals and their property are secondary to the dictates of faceless bureaucrats, who are unaccountable to the people forced to pay their salaries. That a private organization should even have to file a lawsuit against the United States to allow rebuilding after a natural disaster reveals just how grotesquely expansive the federal government has been allowed to grow.

The people of the state of Arizona should stop asking for permission to use their resources and their own property. They should nullify the fed’s illegitimate claim on the land and move to secure it under the constitution’s Tenth Amendment, and by the authority granted to individuals through natural law.

ACTION ALERT

Virginia residents are encouraged to take action on this right now – today. Those living in Virginia are encouraged to contact their Senators with words of thanks for passing HB1160 (at this link) AND the Governor’s office (at this link) in support of this legislation now.

“Sign it, or let it pass!” That’s the message to send to Bob McDonnell.

WHAT HAPPENED TODAY

11:15 am
Senator Peterson (D) moved to “recede” from the Senate position and agree to the House passed language
Senator Newman (D) asked it go by temporarily

1:45 pm
Senator Peterson (D) motion to recede back on floor
Senator Peterson (D) spoke for it — asked a question — Lt. Gov. Bolling said if the Senate receded, the bill would be passed and forwarded to the Governor.
Senator Black (R) spoke for it
no one spoke against it
The vote was 37-1 in favor to recede and agree to the House bill

Senator Stanley (R) moved to reconsider
Lt. Gov. Bolling said that would have required unanimous consent since it was already reconsidered yesterday,
Senator Stanley withdrew his motion (with Dick Black on his feet to object)

So now we will see what the Governor will do. (h/t Bill Olson for the reporting)

Insiders tell us that the Governor’s office is opposed to the bill both philosophically and politically. A bill that passed 96-4 in the House, 37-1 today in the Senate, and has had wide-spread support from people across the political spectrum in Virginia and around the country – is a serious liability for a man possibly being considered for a VP spot in the Republican nomination process. A veto would likely anger many constituents, and signing it could hamper higher political aspirations. This is a difficult place for any politician to be, and a place where Constitution-lovers want those politicians to be!

THE DRAMA

The bill, authored by Delegate Bob Marshall, originally passed the House by a vote of 96-4. In the Senate, there were attempts to delay the bill – basically killing it for the legislative year. That vote came down to a 20-20 tie, and ended up losing. Then, after an outpouring of support across the political spectrum, the bill received an amendment in the Senate, and passed 39-1 – sending it back to the house.

At that point, we believe that Governor Bob McDonnell – whom insiders tell us actually opposes the bill and sees it as a potential liability in a bid for a VP spot in the 2012 election – was working behind the scenes to get the bill killed in the House, which needed to approve the Senate amendment quickly to pass.

A number of procedural moves were used, and the amended bill was held up from coming to a vote. Delegate Barbara Comstock – one of only four delegates to oppose the bill the first time around – was the most outspoken against the bill. In essence, she was working as the establishment tool to try to stop what the People of Virginia, and in fact the entire country, are calling for – resistance to Sections 1021 and 1022 of the 2012 NDAA.

In a speech on the House floor, Comstock recycled the old fear tactics of 9-11 and terrorist attacks, implying that passage of the bill would be dangerous to public safety. “On 9-11, 2001, the Commonwealth was a war zone, a terror site, and I am concerned about what this bill and what this Senate amendment actually intends to do or would do to our national defense and counterterrorism efforts,” she said.

Comstock also stated that she worked with Congressman Frank Wolf (a supporter of NDAA), the Governor’s office and the National Guard to express opposition and to put the bill “in conference” – which would have effectively killed it for the legislative session.

Far from being dangerous to public safety, efforts to stand up for the Constitution do just what the Founding Fathers told us they would when they wrote the Preamble, including “insure domestic Tranquility” and “provide for the common defence.” Following the Constitution to the letter gives us more peace and a stronger national defense!

NONCOMPLIANCE, NULLIFICATION?

While the bill doesn’t, on its own, actually nullify or directly block federal agents from carrying out their new NDAA powers, this is part and parcel of a larger NDAA resistance campaign around the country. Currently 8 local governments have passed resolutions ranging from a denouncement of the federal act in three Colorado counties to requiring noncompliance with it in places like Fairfax, CA and Northampton, MA. And, 10 states are currently considering legislation like Virginia’s – all similar to the model legislation provided by the Tenth Amendment Center, the Liberty Preservation Act.

Here at the Tenth Amendment Center, we define nullification as “any act or set of acts which has as its end result a particular law being rendered null, void, or unenforceable in a specific area.” With that definition in mind, we see nullification of the new “kidnapping powers” of the NDAA as a multi-step process, including resolutions denouncing the act, bills refusing compliance with it on a state or local level, and beyond. This is why the bill has been dubbed by many to be the “NDAA Nullification Bill” – as it is part of a national effort to render those new unconstitutional powers null, void or unenforceable.

Barb Comstock was not happy with such language gaining traction around the country, and spoke of it on the floor in the hopes of derailing the effort –

“HB1160 is being heralded around the country as the NDAA Nullification Bill,” she said. “Even if you don’t agree with the Federal Defense Authorization Bill…the Commonwealth should not be nullifying a national defense bill.” She continued, “This is not at all like health care. I can assure you when I served in the government in the days after 9-11, I never was in the White House Situation Room about health care. But I was in that room over national defense and national security issues.”

Is it any surprise that someone who was in the White House Situation room with George Bush, Dick Cheney and others – would oppose a bill refusing compliance with new extra-constitutional federal powers? Certainly not.

BACK TO THE ORIGINAL VERSION

Eventually, the house rejected the Senate version of the bill, and sent the original back to the Senate for consideration. The options at that point were to vote on the House version or send it to conference, where Comstock wanted it – killing the bill for the 2012 legislative session. After some parliamentary procedures, a motion was made to “recede” from the Senate amendment, which passed 28-10. (tally here) That vote basically said that the Senate was withdrawing their amendment and were willing to have an up or down vote on the House version. After a 39-0 Senate vote to reconsider receding from the Amendment, the bill was “passed by” for the day and put on the schedule for March 8, 2012.

Speaking in favor of the bill today were Senators Petersen (D) of Fairfax City, and Black (R) from Loudoun. “There is a long history – the posse comitatus act – that was designed to create a barrier between military force and law enforcement in this country. This is the first breach…since that period around 1870,” said Senator Black.

The final vote to recede from the Senate amendment, and effectively approve of the original House version was 37-1. (vote tally here)

Delegate Marshall released a statement on the vote today (full statement here) in which he said the following:

“The writ of Habeas Corpus in our Constitution (Article 1, Section 9) is what separates America from dictatorships around the world. Giving anyone the unfettered power to “detain” American citizens without trial, counsel, specific charges, or a public record of such proceedings is unwise, imprudent and at fundamental odds with the assumptions of our government and legal traditions.”

“The next order of business is for Governor McDonnell to sign this bill, and I respectfully call on him to do so, joining the General Assembly in protecting Virginians against unbridled exercise of federal power to detain American citizens.”

LEGISLATIVE TRACKING

CLICK HERE – to view 4 versions of the model bill, the Liberty Preservation Act, for introduction in your state, city, county or town

CLICK HERE – to track the status of the Liberty Preservation Act around the country.

Section 1021(b)(2) authorizes the President to designate persons as enemy combatants that “substantially supported” Al-Qaeda, the Taliban or “associated forces engaged in hostilities against the United States or its coalition partners.” Section 1021 is subject to abuse because it applies to vague “substantial support” for undefined “associated forces.”

Moreover, although section 1021(d) states it is not intended to limit or expand the scope of the 2001 Authorization to Use Military Force (AUMF), section 1021(b)(2)’s covered persons extend beyond the parameters of the AUMF (which was limited to those responsible for 9/11 and those who harbor them).

Did Congress and the President really expand an authorization to use military force with a multi-hundred page appropriation bill? So much for a Constitutionally-required declaration of war…

Pursuant to section 1021(c), the president may dispose of such covered persons according to the Law of War, including: 1) Indefinite detention without charge or trial, 2) Military tribunals, and 3) transfer to foreign jurisdictions or entities.

Section 1021 does not exclude U.S. citizens and legal aliens for actions occurring within the United States as section 1022(b) does. In fact, the U.S. Senate rejected an amendment by Senator Udall that would have banned the indefinite detention of U.S. citizens. Section 1021(e) merely seeks to preserve existing law and authorities pertaining to the detention of U.S. citizens, legal resident aliens, and all other persons found within the United States.

The law and authorities concerning the President’s authority to designate U.S. citizens as enemy combatants are unclear. The WWII case of Ex parte Quirin, 317 U.S. 1 (1942) authorized the president to designate as enemy combatants German saboteurs found within the U.S. In Hamden v. Rumsfeldi, 542 U.S. 507 (2004) the Supreme Court ruled that a U.S. citizen found on a foreign battlefield may be designated an enemy combatant, but is entitled to a measure of due process: at least a military hearing to determine his status as an enemy combatant (where hearsay may come in and the burden may be on the alleged enemy combatant).

The recent Fourth Circuit case of Padilla v. Hanft, 423 F.3d 386 (4th Cir. S.C. 2005) permits enemy combatant status for U.S. citizens captured within the U.S. whose actions are encompassed by the 2001 AUMF. The Supreme Court refused to review the legality of Padilla’s military detention upon Padilla’s transfer to civilian jurisdiction on the eve of Supreme Court review, with three justices sharply dissenting. Padilla v. Hanft, 547 U.S. 1062 (2006). The dissenting judges in Padilla felt strongly that the indefinite detention in Padilla was a harm capable of repetition and the case should be dealt with by the Court. Indeed, if the Supreme Court had not entertained the Bush administration’s jurisdictional hop scotch and ruled on the authority of the President to designate U.S. citizens captured in the U.S. as enemy combatants, we would have clarity on the President’s powers.

There should be no grey areas concerning our fundamental rights to liberty and due process. It ought to be clear whether U.S. citizens found within the United States may be designated as enemy combatants. Unfortunately, the Supreme Court has not offered concrete guidance on this question and has enabled the grey area the NDAA regrettably seeks to exploit. In fact, the office of President, under Bush and Obama, has asserted the ability to designate persons captured within the U.S., including U.S. citizens, as enemy combatants subject to the Law of War. Certainly, clarity from the Supreme Court is called for.

If U.S. citizens (and others) within U.S. may be designated as enemy combatants, numerous Constitutional rights and protections afforded defendants in normal criminal proceedings and trials for treason would not be present. In Boumediene v. Bush, 553 U.S. 723 (2008), our Supreme Court held that persons designated as enemy combatants for indefinite detention possess the right to a military hearing to contest their confinement, and may seek a writ of habeas corpus from the civilian courts. However, hearsay evidence is freely admissible and a preponderance of the evidence standard is sufficient for continued detention until the cessation of hostilities (although the question of whether a lesser standard of proof would be sufficient for indefinite detention has been left open). See Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010); Al Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010).

Think about that: you may be indefinitely detained based on hearsay that proves you were more likely than not an enemy combatant. No proof beyond a reasonable doubt or even clear and convincing evidence is needed to indefinitely keep you incarcerated. Such “enemy combatants” do not have the right to a jury of peers, whether for continued indefinite detention or ultimately, at a military tribunal. These military proceedings deny our most fundamental rights enshrined in the 4th 5th 6th and 14th Amendments to the Constitution, subvert civilian authority to the military, and strike at the very heart of who we are as Americans. Section 1021′s authorization to transfer persons to foreign jurisdictions, outside the reach of our Courts, is perhaps the most disconcerting. The fundamental rights possessed by a U.S. citizen, or other person, captured in the U.S. and transferred to a foreign jurisdiction, are entirely unclear.

Although President Obama signed the NDAA, he issued a signing statement expressing serious reservations: “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. . . . I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.” However, neither President Obama, nor his successor, are bound by this signing statement. And Obama mentions nothing about military tribunals or transfer to foreign jurisdictions of persons found within the U.S..

One must certainly question the President’s judgment: why would he sign the NDAA if he was cognizant of the grave implications to the Constitutional rights of persons within the U.S.? There is probably nothing more deserving of a Presidential veto than the NDAA! Given that Senator Carl Levin admitted on the floor of the Senate that the President demanded section 1021 apply to U.S. citizens, Obama’s signing statement is nothing more than politician double-speak. While every American should feel insulted by such underhanded political gamesmanship, the members of the armed forces have the double-affront of also being funded by a bill that purports to shred the very Constitution they have sworn their lives to protect.

The final vote was 39-1.

After a motion to recommit (delay until next year) went down to the wire before being rejected yesterday (report here), groups across the political spectrum activated in support of the legislation, which codifies in law that no agency of the Commonwealth of Virginia – including defense forces and national guard troops, will comply with or assist the federal government in any way under it’s newly claimed powers to arrest and detain without due process.

INTERNMENT: NEVER AGAIN

The bill’s primary sponsor, Delegate Bob Marshall, had this to say in support:

“During World War II, the federal government incarcerated tens of thousands of loyal Japanese Americans in the name of national security. By this bill, Virginia declares that it will not participate in similar modern-day efforts.

Even President Obama had questions about the bill, when he promised the American people that he would not use the unrestrained powers it granted him — but why should we trust any President with such powers?

There are moments in our history when our liberties hang in the balance. This is one of those moments. I urge the Senate…to lead the way in the nation to ensure that Virginia will not cooperate when the Federal Government strays off the reservation with laws that take away the civil liberties of our citizens.”

BRIDGING THE POLITICAL DIVIDE

Last Thursday, the Tenth Amendment Center, in partnership with the Bill of Rights Defense Committee and Demand Progress held a media conference with experts and legislators from across the political spectrum. On hand were a former Al Gore advisor and a former Reagan administration member. (full report here)

The message was resounding, and echoed by the Jr. Senator from Loudoun Virginia on the floor today, “Wherever you fall on the political spectrum, any law that passes congress that has those provisions should be a deep concern, and I hope that we can all agree on this one issue.”

While the bill doesn’t directly block federal agents from carrying out their new NDAA powers, this is part and parcel of a larger NDAA nullification campaign around the country. Currently 7 local governments have passed resolutions ranging from a denouncement of the federal act in three Colorado counties to requiring noncompliance with it in places like Fairfax, CA and Northampton, MA. And, 7 states are currently considering legislation like Virginia’s – all based off the model legislation provided by the Tenth Amendment Center, the Liberty Preservation Act.

THREE STEPS, MAYBE JUST TWO?

Here at the Tenth Amendment Center, we define nullification as “any act or set of acts which has as its end result a particular law being rendered null, void, or unenforceable in a specific area.” With that definition in mind, we see nullification of the new “kidnapping powers” of the NDAA as a multi-step process.

1. Education - awareness. This is where local and state resolutions come into play. When something is passed, even non-binding, it gets press coverage about the idea that the local and state people have a role to play in this.

2. Non-compliance – as just passed by the Virginia House and Senate, and being considered in various other states and local communities. The message? Your unconstitutional federal act is not welcome here!

Gandhi, Rosa Parks and others didn’t take it beyond there. We recognize that in almost every situation, the federal government relies on states being silent or even fully complicit. Information sharing, logistics, and even national guard troops carrying out orders are activities that could be asked of state and local governments. Could the feds still kidnap at that point if the state refuses compliance? Sure, “legally” nothing has changed. But if 10-15 states and a hundred or so counties and cities are making clear they will not comply and that they consider the act unconstitutional, it’s going to be much tougher for them, if not politically impossible, than if everybody just complied and waited for the courts or another election to “save” them.

3. Resistance and physical interposition – Some, of course, believe that the feds can never be stopped without a physical resistance. But this may not be required if enough states and localities take noncompliance seriously in #2 above. But, we also see the value in running the full spectrum of options from the simplest to the strongest in various parts of the country. In Washington State, the bill there is full non-compliance. Matt Shea and Jason Overstreet, the primary sponsors, feel they can get that moving forward, and hope to follow up with criminal penalties in a future bill. Then, potentially another to require arrest of fed agents for kidnapping could be considered. In Missouri, they’re tracking along the same lines.

In Tennessee, though, the bill being considered right now refers to indefinite detention as a “kidnapping” charge and requires the local sheriffs to stop them. (info here)

MORE STEPS IN VIRGINIA

HB1160 received a minor amendment in the Senate before passage and now goes back to the House for Concurrence. The bill previously passed the house by a vote of 96-4 so it’s expected that the amended version will sail through as well. The Amendment reads as follows:

§ 1. Notwithstanding any contrary provision of law, no agency or political subdivision of the Commonwealth, or employee of same acting in his official capacity, shall aid an agency of the United States in the unlawful detention of any United States citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012 (P.L. 112-81, § 1021).

Delegate Marshall previously reported that Governor Bob McDonnell is opposing this legislation. And, even with such large veto-proof votes in both the House and Senate, Virginia residents are encouraged to take action today. Those living in Virginia are encouraged to contact their Senators with words of thanks for passing HB1160 (at this link) AND the Governor’s office (at this link) in support of this legislation now.

LEGISLATIVE TRACKING

CLICK HERE – to view 4 versions of the model bill, the Liberty Preservation Act, for introduction in your state, city, county or town

CLICK HERE – to track the status of the Liberty Preservation Act around the country.

True, there are serious moral and political issues inherent in requiring religious institutions to offer “treatments” they find theologically offensive. But, despite the claims of many Catholic and conservative commentators, the U.S. Department of Health and Human Services (HHS) rule probably doesn’t violate the freedom of religion clauses of the First Amendment, at least as currently interpreted.

[By the way, when claiming a First Amendment violation, some commentators also have said the First Amendment is “first” because of its primary importance. Actually it is first by historical accident: It was originally the third amendment, but became the first when the states failed to ratify the original first and second; the original second later became the 27th.]

The HHS rule applies to employers as a class (except churches per se). It does not single out institutions affiliated with religion. In the words of the Supreme Court, it is a “neutral and generally applicable” rule.

In the 1990 case of Employment Division v. Smith, the Supreme Court upheld “neutral and generally applicable” rules, even when they substantially burden religious practice. As the Court said in that case, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Note that both prohibitions and mandates are included in the court’s language.

This year, the Court issued Hosannah-Tabor v. Equal Employment Opp’y Comm’n, which blocked the Obama administration from interfering with how a church staffed its own ministry. Some might cite Hosannah-Tabor as evidencing a more friendly judicial attitude toward religion. Unlike Smith (and unlike the latest HHS rule), however, Hosannah-Tabor dealt with ministers in churches, not lay personnel in non-church institutions such as hospitals.

Hosannah-Tabor did include some language that might give hope to those claiming the HHS regulation violates the First Amendment:

“It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”

You can argue that forcing a Catholic hospital to offer abortifacients is “government interference with an internal church decision that affects the faith and mission of the church itself.” But since hospitals are not churches and insurance policies are not ministers, chances are the Hosannah-Tabor holding would not void the HHS rule.

Another possible source of hope for religious groups is the federal Religious Freedom Restoration Act, passed in the wake of the Smith decision. It provides that even neutral and generally-applicable rules substantially burdening religion are valid only if “the least restrictive means of furthering [a] compelling governmental interest.” But that statute is useful only if not contradicted by Obamacare. And last year, in Mead v. Holder, a federal district judge held that Obamacare does serve the “compelling governmental interest” of “reforming the health care market by increasing coverage.”

So the real legal problem here is Obamacare and the mindset behind it. Obamacare’s profound interference into American life has already triggered many thorny constitutional and moral problems, and will trigger more.

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As for the mindset, consider:

* A recent Fox News poll shows that “By a 61-34 percent margin, those surveyed this week approve of the Obama administration requiring all employee health plans to provide birth control coverage as part of health care for women.”

* The D.C. federal judge’s conclusion that increasing third party payments is a “compelling governmental interest”—when that system is actually the primary culprit in the health care crisis.

* Those in the Catholic hierarchy who actively supported Obamacare, thereby throwing the beliefs of other religious sects (such as Christian Scientists) under the bus.

Too late, liberal Catholics are learning that when you lie down with snakes, you get bitten.

Yes they are.

This is a complicated area, and there has been a lot of word-fudging in spinning this subject. So bear with me as we take things step by step.

*    The U.S. Constitution generally guarantees the “Privilege of the Writ of Habeas Corpus.” The writ of habeas corpus is a court order a prisoner can obtain requiring the jailer to come into court and justify his detention of the prisoner. It is a traditional way in which those held can demand a fair trial by jury in a civilian court. The writ of habeas corpus is a treasured part of our traditional liberty. Belief that the British were infringing it was one cause of the American Revolution.  (The writ is called a “privilege” rather than a “right” because it is a creation of the legal system rather than a natural right, like the right to free speech.)

*    By the Constitution’s original meaning, the privilege of habeas corpus is guaranteed to all those in “allegiance” to the United States. “Allegiance” is an old technical legal term that includes both citizens and aliens legally in the country.

*    By successfully convincing a judge to issue a writ of habeas corpus, citizens, foreign visitors, and legal residents may obtain a hearing that may induce the judge to order a civilian trial. It matters not how heinous the crimes they are accused of. For example, a person charged with trying to blow up a building on behalf of a foreign power can be charged with treason. But while still merely accused, he is entitled to all the protections of due process, including a fair, public trial before a jury of his peers.

*    By the Constitution’s original meaning, habeas corpus does NOT apply if the Congress, as an incident to its war power, “suspends” the writ for a particular time and place. However, the Constitution says that Congress may “suspend” the writ only “when in cases of rebellion or invasion the public safety may require it.” Congress has not suspended the writ, and it is doubtful that occasional acts of terrorism constitute a sufficient “rebellion or invasion” to justify doing so. Even if Congress could suspend the writ, a Bill of Suspension would be a serious, much-debated measure for which Congress would have to assume direct political accountability. Political accountability is not a big priority with Congress right now.

*    Members of all belligerent armed forces (both sides) are subject to military, not civilian, law.

*    Thus, by the law of war, the executive (and the military officers under him) may incarcerate for the duration of the conflict any enemy combatants captured in the theater of war.

*    By the Constitution’s original meaning the executive has no constitutional power (without formal congressional suspension of the writ) to lock up citizens or lawful aliens apprehended outside the war theater. If accused of crime, the accused has the privilege of a jury trial in a civilian court. By the Constitution’s original meaning, this constitutional right does not apply to enemy aliens, wherever apprehended.

*    In 2008, the U.S. Supreme Court (erroneously, in my view) held that alien Guantanamo detainees have the right to habeas corpus to determine if they are really enemy combatants. Still, under this case if they are found to be enemy combatants they can go back to prison indefinitely.

Now, with that background, let’s look at the critical language of the Act, again step by step:

§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.

Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.

(b) . . A covered person under this section is any person as follows:

Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens with U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?

c) . .  The disposition of a person under the law of war . .  may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .

Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”

(d) . . . Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!

(e) . . . Nothing 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.

Comment: This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. This is true because neither the Bush nor the Obama administration has had the audacity to round up U.S. citizens without our borders and hold them indefinitely without trial.

Here are the principal Supreme Court decisions the law preserves:

(1) A post-Civil War case (Ex Parte Milligan) saying a citizen non-combatant  incarcerated outside the theater of war is entitled to habeas corpus. (This holding doesn’t help those accused of being combatants.)

(2) The World War II-era Quirin decision that permitted President Roosevelt to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. Obviously, this decision—which is widely acknowledged to be egregious—offers no protection against the National Defense Authorization Act.

(3) The 2004 Hamdi case, which says that a U.S. citizen captured bearing arms in the war theater is NOT entitled to habeas corpus. He is entitled only to a minimal military hearing without a jury and without many of the traditional due process protections.. (Some apologists for the National Defense Authorization Act are claiming the Hamdi case granted a right of habeas corpus; this claim is flatly wrong.)

(4) The 2008 Boumedienne decision, which held that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.

Obviously, none of these prior holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant. So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.

§ 1022: (b) (1) . . . The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) . . . The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

Comment: This section says that the administration is not REQUIRED to keep a U.S. citizen or legal resident alien in indefinite military custody. But it does not prevent the administration from doing so.

* * * *

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When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential. If the administration does try to use it to lock up American citizens without habeas corpus, the Supreme Court probably will void the incarceration and require a civilian trial. But in the normal course of events, vindicating one’s rights could take years.

Of course, in America, we traditionally don’t lock up citizens on mere suspicion. . . .

Or is that is now changing?

NDAA is the National Defense Authorization Act. Two sections of the bill permit the Kidnapping (arrest and indefinite detention without due process) of both citizens and non-citizens, charged with being tangentially related to terrorist groups or activities.

Members of Congress keep misleading constituents about what the bill actually does.

DownsizeDC.org already addressed the lie, “Don’t Worry, the NDAA exempts Americans” back on January 17. We consider that to be Part 1 in our responding to lies series.

The Latest Lie

A DC Downsizer writes, “Senator (blank)’s office is claiming that the NDAA gives the executive no new authority and only codifies a 2001 Supreme Court decision.”

This is supposed to make us feel better?

It doesn’t matter whether the office making this claim realizes they are prevaricating or they’re just ignorant and repeating a fable they’ve been told. Neither explanation of their behavior reflects well on them.

Let’s strip the cleverness. What are they’re ACTUALLY saying? 

“For years, the Executive Branch has usurped and used very similar powers. We, in Congress, have come along and brought the code of law in compliance with these acts. We have merely provided our endorsement and cover to them.”

Now, there’s actually a grain of truth in that statement, when it’s rendered that accurately. The Executive branch was outside the law. So what the Senator’s office is really saying is, “Two wrongs make a right.” 

But this answer is still misleading because this bill does NEW things . . . 

1) For the first time, America was declared part of the “battlefield” in the war on terrorism.

* Sen. Lindsey Graham (R-S.C.), who backed the bill, indicated that the bill “basically say(s) in law for the first time that the homeland is part of the battlefield,” and that people can be imprisoned without charge or trial “American citizen or not.”
* Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

2) Indefinite detention for American citizens was also novel.

Consider the following exchange between him and Senator Rand Paul from the Senate floor . . . 

MR. PAUL: My question would be, under the provisions, would it be possible that an American citizen could be declared an ‘enemy combatant’ and sent to Guantanamo Bay, and detained indefinitely?

MR. McCAIN: I think that as long as that individual, NO MATTER WHO THEY ARE, if they POSE A THREAT to the security of the United States of America, should not be allowed to continue the threat.

3) As of yet, no bill calls for total repeal of BOTH offending sections, 1021 and 1022. But there are bills by Senator Diane Feinstein, Ron Paul, and others, calling for modification or repeal of various aspects.

Why would such bills be necessary, and even more important, why are they being resisted, IF, no new power is represented here?

• Repeal 1021? Well, we don’t really need it because the power already existed, right? 
• Declare that America is not part of the battlefield, continuing with Posse Comitatus? Why not, since there’s nothing new here?
• Exempt Americans? Why object, if there’s nothing novel about this law?

By the way, since there’s an office saying that there’s a Supreme Court case, and they are merely “ratifying,” then I’m curious about two more things . . . 

1) What is the decision to which they are referring?

2) What clause in the Constitution permitted either the Executive Branch or the Supreme Court to create a law, and the Congress to come along and “ratify” it? Isn’t this EXPRESSLY the opposite of the Constitutional design, whereby the elected representatives of the people legislate?

I hate to name names because this “Don’t Worry” lying campaign is widespread amongst Congress-criminals. Call your Reps and Senators to find out if they are among the guilty.

*******

EDITOR’S NOTE – This post originally appeared at DownsizeDC.org

CLICK HERE – for state and local model legislation to stop the NDAA in your area.

How the New Indefinite Detention Provisions can be used on Americans

Congress just passed, and the President just signed, a bill that gives legal authority to the President to kidnap and perpetually imprison persons, including American citizens, without the benefit of due process.

Members of Congress, in the days leading up to the vote, tried to assure their constituents that they have nothing to fear — that the bill doesn’t apply to Americans.

Some were lying. Most were deceived.

Now, I don’t want to imply that Barack Obama plans to sweep up every one of his critics (or even a select few) because of statements they’ve uttered publicly. That is overstatement. The law doesn’t permit that. But consider the following scenario…

You object to the way the Federal Leviathan State is run. You gather, every other Tuesday, with others who share your values. We’ll call your fictional group the Constitution League (CL).

One night, a new fellow shows up. He’s frustrated and outspoken. He complains that the time for meetings is over. Something must be done — something that will “get their attention.” You’re uncomfortable with his remarks but unsure how to respond.

You hope he never returns, and he doesn’t.

What you don’t know, until months later, is that one of our CL colleagues, the chapter Vice President, followed the vocal man out to the parking lot. The two exchanged email addresses and phone numbers. Then, your local VP reached out to a third man, a member of a CL chapter in the nearest big city. The three met regularly. They plotted and executed their own terrorist plot on a U.S. Government facility.

Now, your group meeting was the place they met. The Vice President used his CL email account. CL is all over the news. CL is now, for all intents and purposes, a terrorist group.

And you? Well, you’ve donated to the terrorist organization. You’ve participated in its meetings. The night this angry man walked in, you didn’t call the authorities.

* Can the President have the military come and arrest you? Yes!
* Can he (or she) send you to a military tribunal for trial or just hold you indefinitely in a military facility, without charges? Yes!

Even the bill co-sponsor, Senator McCain, appears to agree with this assessment. Senator Rand Paul asked John McCain, on the Senate floor, “…under the provisions, would it be possible that an American citizen could be declared an ‘enemy combatant’ and sent to Guantanamo Bay, and detained indefinitely?” McCain responded, “I think that as long as that individual, NO MATTER WHO THEY ARE, if they POSE A THREAT to the security of the United States of America, should not be allowed to continue the threat.” {Emphasis Added}

Wait a minute. Wasn’t there a provision in this bill that exempted Americans?

Despite what your Congressional office may have told you (if you called during the debate over this bill) the answer to that question is an emphatic NO!

The relevant sections of the bill are 1021 and 1022.

* Section 1021 asserts the President’s authority to arrest suspected (not convicted) terrorists and gives him the option to choose whether or not they even get a trial, and if so, what kind of trial.

* Section 1022 requires that a certain class of terrorist get no trial. Instead they must be held in military prisons, for as long as this President, or any future President desires.

SECTION 1021

Section 1021 is very expansive in its reach. It “includ[es] any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

* Who is “any person?”
* What is a “belligerent act?”
* What is “direct support?”

One could be safe in assuming these words mean whatever a creatively-minded prosecutor, a flexible judge, and an ignorant jury define them to mean — EXCEPT THAT, UNDER THIS ACT, ONE MIGHT NEVER GET AS FAR AS A COURT HEARING.

These terms will be defined by the bureaucrats in power.

They could be used against political opponents.

1021 has NO exceptions. There’s not even a hint of an exception. Remember, that section gave the President the authority to arrest you and a set of options on how you were to be handled. These choices are completely divorced from the 4th, 5th, 6th, and 8th Amendments, as well as the Treason provisions of Article III. The President’s new alternatives are…

1. Detention without trial by the military
2. Trial by a military commission
3. Trial by some other court of the President’s choosing
4. Shipping you off to a foreign jurisdiction (info here)

SECTION 1022

1022 is a REQUIREMENT — a binding mandate upon the President. President Obama threatened to veto the bill, but only because he feared 1022 would restrict his power too much. http://gawker.com/5866210/jon-stewart-bashes-obama-for-backing-indefinite-detention-bill

This section is for your fellow CL members/plotters. Whereas, you got snatched up for “support” or “aid” to the plot, they actually carried out an attack, or as the section itself indicates…

“…participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”

Section 1022 requires the President to go with option #1 above — the other three options are off the table. In other words, no trial, either in a civilian court or military tribunal.

In the final version of the bill, after a public storm started to erupt, the title of the section was changed to indicate that it only applied to “foreign al-Qaeda terrorists.” However, titles are not normally considered part of the law but merely summary descriptions to the reader of a bill.

But this title is especially IRONIC, because it’s this section that includes the so-called exemption for American citizens. Why would you need to exempt American citizens from a section of law that applies to “foreign al-Qaeda terrorists?”

The answer is because the section applies to any kind of “terrorist,” domestic or foreign, no matter what the title says.

And here’s the so-called exemption, with the key word highlighted…

The REQUIREMENT to detain a person in military custody under this section does not extend to citizens of the United States.

That means that military custody, without a trial, is mandated by law, but that the President, at his discretion or by written policy, may issue a waiver on the basis that a person is an American citizen.

If this provision was a true safeguard for American citizens, then the line would’ve been written like this…

Military custody of citizens of the United States is still prohibited under this act.

See the difference? It’s a requirement that can be waived at discretion, as opposed to a prohibition.

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Now, do you realize Congress has given the Federal State the power to use military detention on its own citizens? And that they’ve made it possible to wage a war on peaceful activists, if they can just incite someone in your group to attempt something violent?

Don’t worry. It’s not like the FBI is busy infiltrating meetings, entrapping some dullard into a plot, equipping and financing his efforts, and then claiming credit for stopping another terrorist attack! Oh wait, that’s happened about 40 times since 9/11.

Thus, to complete our story, the angry man who showed up at the CL meeting might’ve work for the FBI. And he duped two idiots in your group, who put you and your fellow members in legal jeopardy.

This new law is that serious. President Obama has claimed he won’t use this power. All that needs to happen now is a provocative incident. Then, all bets are off. Since these nearly unlimited, un-constitutional powers are now law, this President, or a future one, will be able to kidnap and disappear Americans. It could very easily be open season for the police state.

—–

Jim Babka is the President of Downsize DC Foundation and DownsizeDC.org, Inc.. DownsizeDC.org will soon launch a campaign to repeal these sections from the law.

Copyright © 2012 by Jim Babka. Permission to reprint in whole or in part is gladly granted, provided full credit to the author, DownsizeDC.org and TenthAmendmentCenter.com is given.

Attorneys with NORML have filed suit against the federal government over its crackdown on medical marijuana distribution and cultivation in California. In lawsuits filed last week in the four US Attorney districts in the state, the NORML attorneys bring a number of legal and constitutional arguments to bear in asserting that the federal government has overstepped its boundaries in interfering with the state’s medical marijuana business.

Leading the legal charge are San Francisco attorneys Matt Kumin, David Michael, and Alan Silber.

The lawsuits seek a temporary injunction to block the state’s four US Attorneys, as well as Attorney General Eric Holder and DEA administrator Michele Leonhardt, “from arresting or prosecuting Plaintiffs or those similarly situated, seizing their medical cannabis, forfeiting their property or the property of their landlords or threatening to seize property, or seeking civil or administrative sanctions against them or parties whose property is used to assist them” while the case is being heard.

The plaintiffs in the case are California medical marijuana dispensaries, cultivators, and patients. Some targeted dispensaries have already been forced to shut down by a deadline last Friday to avoid possible federal reprisals if the temporary injunction is not granted.

The lawsuits also seek a permanent injunction barring further federal action against lawful (under state law) medical marijuana operators and patients. And they ask the courts to declare the federal Controlled Substances Act unconstitutional to the extent that it blocks California residents from obtaining marijuana as medicine as is legal under state law.

The lawsuits are a response to a federal offensive against medical marijuana in California unleashed last month, when the Justice Department sent dozens of letters to California landlords and dispensaries ordering them to close down or face possible seizure of their properties and criminal prosecution. Dozens of dispensaries have already closed in response to the threats.

The federal offensive has also included SWAT-style DEA raids on medical marijuana operations, including some that are among the most closely regulated under state law. In Mendocino County, for example, the DEA raided Northstone Organics, a cultivation operation so regulated by local authorities that every plant had a sheriff’s tag on it.

The lawsuits claim the federal government “entrapped” medical marijuana suppliers by seeming to give the okay to their operations in an October 2009 Justice Department memo. They also claim that the federal actions violate the 9th, 10th, and 14th Amendments to the US Constitution.

The 9th Amendment says that merely because some rights are enshrined in the Constitution does not mean the federal government can “deny or disparage others retained by the people.” The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”

The 10th Amendment gives powers not delegated to the federal government “to the States respectively, or to the people.” The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens,” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.

A lawsuit challenging the federal crackdown filed last month by Americans for Safe Access also makes a 10th Amendment argument. The feds have “instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries,” the advocacy group complained.

“Although the Obama Administration is entitled to enforce federal marijuana laws, the 10th Amendment forbids it from using coercive tactics to commandeer the law-making functions of the State,” said ASA Chief Counsel Joe Elford, who filed the lawsuit in San Francisco. “This case is aimed at restoring California’s sovereign and constitutional right to establish its own public health laws based on this country’s federalist principles.”

The 14th Amendment provides all citizens equal protection under the law. The NORML attorneys argue that because the federal government allows a handful of people access to marijuana through the Investigational New Drug program, allows a state-licensed medical marijuana system in Colorado to go unharassed, and blocks scientific research into medical marijuana, it is effectively denying equal protection to California residents.

The NORML attorneys also take issue with the US Supreme Court decision in Raich v. Gonzalez, which upheld the use of the Constitution’s interstate commerce clause to stop California patients from legally growing their own medicine.

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While acknowledging the Raich decision, they wrote that “it is still difficult to imagine that marijuana grown only in California, pursuant to California state law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.”

The courts are going to be busy with this matter for awhile, but a preliminary injunction would allow the California medical marijuana industry to go about its business unmolested while the matter gets sorted out.

Phillip S. Smith is a writer and editor with StoptheDrugWar.org. He is a graduate of the University of South Dakota (BA Political Science, 1979) and the University of Texas at Austin (MA Latin American Studies, 1989), and served as writer and Associate Editor at the magazine Covert Action Quarterly from 1993-1996. Phil has done freelance reporting on Central American and Mexico since the 1980s, and has had articles published in In These Times, Guardian (now defunct), New Politics and many other publications. He is also a long time drug policy activist, having helped to found one of the first NORML chapters in the state of South Dakota. He has been involved in local drug reform efforts in Austin, TX and Washington, DC, including the DC Metro chapter of NORML.

CC / Attribution / StoptheDrugWar.org

The protesters exemplify a growing frustration and disillusionment with the status quo seen across the United States over the last year. We’ve seen evidence of this in other measures of public opinion. A recent Gallup poll revealed more than half of all Americans are “dissatisfied with the nation’s governance,” and further that nearly half of those polled believe the federal government possesses too much power and poses a threat to individual liberty.

They’ve seen the spiraling debt, endless war, and increasingly concentrated power. They recognize the problem.

But many seem less sure of solutions. This creates the opportunity to educate the disaffected and create allies in the quest to rein in overreaching federal power. But it also leaves the door open for others to push the movement toward tyrannical actions.

TAC deputy director Bryce Shonka spent nearly five hours talking with folks at Occupy Seattle on Oct. 4. He said he saw a lot of potential in the gathering. He called it a, “Blank page youth movement waiting for leaders.”

What will we write on that page?

The initial call for Occupy Wall Street apparently came last summer from a magazine called AdBusters. The publication, based in Vancouver, British Columbia, Canada, describes itself as, “a not-for-profit, reader-supported, 120,000-circulation magazine concerned about the erosion of our physical and cultural environments by commercial forces. Our work has been embraced by organizations like Friends of the Earth and Greenpeace, has been featured in hundreds of alternative and mainstream newspapers, magazines, and television and radio shows around the world.”

David Graeber, an American anthropologist, was one of the initial organizers of Occupy Wall Street. He taught at Yale, but the university declined to rehire the controversial professor in 2007. He currently holds a position as Reader in Social Anthropology at Goldsmiths, University of London. He is known for his anarchist views and has ties to Industrial Workers of the World, an international labor union that advocates for an abolishment of wages. The union website describes the organization’s goal

The working class and the employing class have nothing in common. There can be no peace so long as hunger and want are found among millions of the working people and the few, who make up the employing class, have all the good things of life.

Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the means of production, abolish the wage system, and live in harmony with the Earth.

In an interview with the Daily Kos, he explains how the event was organized. On July 2, a general assembly was held, but Graeber said that a Marxist group was already acting like it was running the show and it seemed more like a rally, so he and several others pulled a group together to hold a real assembly.

“AdBusters had already advertised the date to 80,000 people. And their date was a Saturday. You can’t really shut down Wall Street on a Saturday. So we were working under some significant constraints. We assembled 80 or 100 people and formed working groups for outreach, process, so forth and so on. And we began meeting every week,” Graeber told the Daily Kos.

The movement really has global roots.

“One thing that helped a lot was a smattering of people from Spain and Greece and Tunisia who had been doing this sort of thing more recently. They explained that the model that seemed to work was to take something that seemed to be public space, reclaim it, and build up an organization headquarters around that from which you can begin doing other things.”

Graeber described the root philosophy of the movement in terms of decentralization and direct democracy, thus the lack of any direct demands.

“We’re trying to reframe things away from the rhetoric of demands to a question of visions and solutions. Now, how that translates into actual social change is an interesting question. One way this has been done elsewhere is you have local initiatives that come out of the local assemblies,” he told the Daily Kos.

Of course, other groups have moved into the spotlight at well. Traditional left leaning organizations and unions have voiced support and participated in the occupation.

“It is organically happening, but there are definite problems that occur. We found this back in the days of the globalization movement. Unions were very supportive and provided resources, but they’re very different organizations. The real difficulty is how to work with people who are top-down and have a funding base, as it means there are things they can say in public and things they can’t, and groups where people can say whatever they want and the whole idea is to be decentralized. One problem I’ve already heard of is that people are coming in and changing the tenor of the general assemblies to speeches, and that’s not really what it’s supposed to be about. So you have to balance the aspect where you’re trying to show what direct democracy could be like and the effort to link up with groups that have a form of organization we’ve rejected,” Graeber said.

The message of decentralization certainly aligns with the core principles of the Tenth Amendment Center. After all, a powerful federal government dictating one-size-fits-all policy for the entire United States stands in direct opposition to the philosophy advocated by OWS organizers. On the other hand, direct democracy was something the founders of the United States found dangerous. James Madison wrote:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.  A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.  Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. 

The good news; Shonka said many participants in Seattle expressed a basic distrust of the feds.

“I don’t have any faith, and I don’t trust the current federal government,” one OWS Seattle occupier told Shonka.

“Right there you’ve got it,” Shonka said.

But the direction the action will ultimately take remains up in the air.

“They know a few things about a few things. Enough to be dangerous, or to be our allies,” Shonka said.

The small group gathered in front of the Chase Bank building in downtown Lexington seemed completely unaware of the bigger picture, expressing a hodge podge of ideas and points of view. One young man, a self-proclaimed socialist, advocated for higher taxes on the “rich” and corporations for the purpose of wealth redistribution. When the conversation turned to constitutional restraint as a possible solution to America’s problems, he turned away in disgust.

“Oh yeah, the Constitution that enslaved black people and women. Yeah. Right.”

But others said they simply wanted to live their lives, find decent jobs and earn a decent living. They described themselves as the “99 percent,” and although much of the discussion was tinged with class warfare rhetoric, the group seemed generally open to the message of constitutionally restrained government.

But lacking any core principles, they also seemed easily swayed and gave the impression that they would favor coercive government power if they thought it was wielded to their benefit.

After spending an hour or so with Occupy Lexington participants, I left them with a message.

“Remember, any power you give the federal government to advance your cause, whatever that may be, you grant the feds the same power to turn against you.”

Seems a fitting message in these times.