The intent here is not necessarily to give a word by word rebuttal of the Heritage report and Kyl’s speech, but instead – to address the overarching themes of his speech.

The Heritage report is prefaced with an abstract, featuring Thomas Jefferson’s declaration that “the price of liberty is eternal vigilance…” This idea, misapplied, forms the foundation of Kyl’s thesis, as vigilance, much like the word defense, is stretched to mean overseas intervention and military budgets of grotesque proportions.

A quick note on terminology is important here. Kyl states early in his talk that “liberals and progressives have never been supportive of the imperative to preserve American sovereignty…” While the term sovereignty is sometimes used in a foreign policy context to denote independence, Kyl seems to use it as a synonym for the word security. He goes on to list three ways in which American “sovereignty” is put at risk, and each relates not to independence from international governmental organizations, but to issues commonly related to national security. They are: cuts to so-called defense, opposition to foreign intervention, and privacy concerns (he didn’t give details on this last item, citing too little time).

Before moving into Kyl’s full argument, it is important to point out the false dichotomy he presents for the audience. There is no fundamental difference in the foreign policy ideologies of conservative and progressive politicians, as judged by their actions. Practically speaking, the Obama foreign policy is the same as Bush’s, which is the same as Clinton’s, which is just like that of Bush before him, and so on. To be sure, progressive politicians often speak in more humble terms, but their actions – escalating drone strikes, tripling troop levels in Afghanistan, ignoring due process, and launching new wars – belie this rhetoric.

In his lecture, Kyl does not aim his criticism at liberals, but instead directs it at other Republicans. He warns of a “creeping sentiment within certain Republican circles that America is indeed in a period of decline, mostly due to runaway spending, and that we cannot, therefore, afford the kind of military we had in the past and should disengage from many areas of the world.” This is to say that these Republicans are beginning to reject the neoconservative dogma that has dominated U.S. policy for decades. Kyl laments this – but it’s a good thing.

Intervention is not conservative and it is not consistent with “America’s founding principles,” nor is intervention conducive to a “strong national defense,” in its true sense. For the United States, the 20^th Century marked the rise of foreign intervention, and it was ushered in by progressives, notably Theodore Roosevelt and Woodrow Wilson, neither of whom was very conservative. Consider also that Franklin Roosevelt, Harry Truman, and Lyndon Johnson – all progressives – were proponents of foreign military involvement. By and large, the foreign policy of the U.S. during its first century was far more humble, mirroring the advice from the likes of Thomas Jefferson and George Washington.

Foreign entanglements, of the kind Kyl advocates, degrade the actual defense of the country in three ways. With troops stationed all over the planet they are more vulnerable to attack and, cannot adequately defend the U.S. The bombing of naval ships and foreign barracks provide examples of the former; and the fact that the U.S. military was better prepared to defend South Korea, Saudi Arabia, or Germany on 9/11 explains the latter. But the last, and most fundamental reason of all, is that intervention begets intervention by way of blowback. When the U.S. intervenes in the affairs of another country it necessarily creates enemies by choosing sides and killing civilians – even accidentally. Thus begins a cycle where the victims’ resentment builds, they retaliate, are attacked again, and still more seeds of blowback are sewn.

This is to say nothing of the economic price tag for what amounts to an empire. Kyl brings up the perennial argument over entitlements versus military spending, and suggests that cutting “defense” spending to accommodate entitlement funding would be “devastating to national security.” Reducing defense spending would likely be detrimental to security, but so much of the pentagon’s budget is dedicated not to actual defense, but instead is offensive in nature. Not a single one of the many wars now being fought is truly defensive, nor do the inhabitants of the targeted countries pose any credible threat to the U.S. mainland.

Kyl admits that “the fastest-growing part of the budget is in personnel costs, especially for health care.” This is all due to the very policies which he promotes. Personnel costs are higher and the price of healthcare continues to rise directly because the military is spread across the globe waging wars with no end in sight. Tens of thousands of wounded veterans, many of them burn victims and amputees, the hundreds of thousands suffering from traumatic brain injury, and the more than one hundred thousand on psychiatric drugs all cause spending to rise dramatically.

Like all good advocates of the state, Kyl uses the Orwellian term “interests” to supplement his argument. U.S. foreign policy has evolved significantly, perhaps beginning with Thomas Jefferson’s authorization to deploy troops to Tripoli in 1801. But with a military presence now in some 130 countries, virtually anything could be construed as part of “our national interest” and used to justify intervention. We must get away from this mentality – that everything that happens in the world deserves an immediate response from the U.S. military. It’s destructive, it’s unconstitutional, and it’s immoral.

But as things stand today, even ancillary issues are used to justify inserting the U.S. government into the affairs of other nations. Kyl laments the decision of several members of the Senate Foreign Relations Committee to reject a “resolution in support of the besieged Syrian people.” The resolution would have established as U.S. policy that “the legitimate aspirations of the Syrian people cannot be realized so long as Bashar al-Assad remains in power and that he must step aside.” The reason it was rejected by those Republicans, he surmises, was because such a policy “might ultimately lead to taking some kind of action.”

In fact, the resolution would have only codified existing U.S. policy, as the U.S. State Department had already promised to fund the rebellion and provide communications equipment as a month prior to the aforementioned resolution. And, it is widely understood that many of the previous military conflicts began with resolutions and so-called “non-lethal aid.” Rarely is an all-out military invasion something that happens overnight. In practically all cases it stems from another Orwellian term: “diplomacy.”

In the twisted definition now used by war Hawks, “diplomacy” is no longer negotiations and attempts at non-violent solutions. It has now morphed into an aggressive process that involves sanctions, threats, blockades, and the deployment of troops, naval ships, and aircraft to further isolate and coerce the targeted parties into compliance. That so many Republicans refused to participate in this endeavor is to be celebrated, as most often it is not the political and military leaders that suffer from such “diplomacy,” but the people of the country who have no say in the matter.

In his final segment, Kyl invokes Jesse Helms, urging Americans to “demonstrate not only to ourselves, but to the world that as a nation we stand by American values—freedom, rule of law, sovereignty—both at home and abroad.” If this advice is to be taken seriously, and not meant merely as a platitude, Americans should reject the foreign policy shared by neoconservatives and progressives now being applied. It is indeed anathema to freedom and the rule of law, as the Patriot Act (also known as the “repeal the 4^th Amendment act”), certain provisions in the NDAA, and everything the TSA has done in the last decade attest.

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In the end, Kyl asks: “How do we determine the appropriate American leadership role?” Of course a rudimentary approach involves looking to the constitution. That document is very clear on how war is to be declared. That is the legal means, but it’s vague as to why it may be declared, or the moral reason. For the answer to this we must look to the principle of non-aggression for moral guidance. Murray Rothbard defined the non-aggression principle thusly: “No one may threaten or commit violence (‘aggress’) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another.”  

In essence, this is the Golden Rule, and it should guide foreign policy; not some bastardized definition of “defense,” “interests,” or any other manipulated term to sterilize unjustified military force.

Supporters of detention provisions written into the NDAA continue to perpetuate this myth that no “non-terrorist” could ever possibly find himself held indefinitely until the end of hostilities.

In essence, they claim, “If the government says you’re a terrorist, by God you must be a terrorist.”

The Heritage Foundation played this little game in a May 16 column that Liberty News Network juxtaposed with a column written by me and Shahid Buttar over at the Bill of Rights Defense Committee.

The Smith–Amash amendment would force the government to send any al-Qaeda member captured in the United States directly to federal court. If this amendment becomes law, it would limit a President’s flexibility and take off the table lawful military detention and lawful interrogation for intelligence purposes.

The Wall Street Journal editorial board made a similar argument in a recent op-ed, suggesting that opposition to NDAA was akin to treating Nazi infiltrators the same as common burglars.

In fact, the Constitution does guarantee all persons on American soil the same right to due process – speeders, burglars and mass murderers. Yes, that even includes accused traitors, per Article III Sec. 3 of the Constitution. But NDAA detention provisions strip away those fundamental rights, replacing them with the discretion of the president, giving him leeway to hold those he deems “terrorists” until the “end of hostilities.” And Congress filled sections 1021 and 1022 of the NDAA with undefined terms such as “associated forces,” “substantially supports” and “belligerent acts,” again leaving interpretation to the president.

As you can see by the language in sections 1021 and 1022, Heritage vastly oversimplifies things. It’s not only “al Qaeda members” at risk of getting caught up in some federal dragnet. (Notice the presumption there – if the feds say she is a member of al Qaeda, it must be true!) In truth, those at risk of indefinite detention until the end of never-ending hostilities also include accused al Qaeda members. And people accused of substantially supporting al Qaeda. And people accused of involvement with “associated forces.” And people accused of committing “belligerent acts.”

I don’t know what all that means.

And nobody else does either.

That’s the problem!

In the world of Heritage, NDAA detention presents no problem because it will only apply to terrorists.  But by that line of reasoning, we don’t need due process for accused murderers either. After all, the police would never falsely charge somebody with murder, now would they? And we certainly don’t need due process for the Wall Street Journal’s mythical burglar. I mean really, why exactly did the states insist on the Fourth, Fifth and Sixth Amendments anyway?

Heritage argues that the laws of war justify these vastly expanded presidential powers.

Under the law of armed conflict or the law of war, a nation engaged in armed conflict has the legal authority to detain enemies who have engaged in combatant actions, including acts of belligerence, until the end of hostilities. A nation may detain captured enemy fighters—not as punishment but to keep them from returning to the battlefield. The law of war does not differentiate or discriminate between enemy combatants who are citizens or those who are non-citizens.

But the laws of war only apply “in the theater of war,” in other words, on the field of battle. So Heritage asserts that every square inch of the United States, from Central Park to my back yard, counts as a battlefield. I beg to differ. I just looked out into my back yard about 15 minutes ago. No armies lined up. No military installations next door. No cannon fire pouring in from the Circle K up the street.  And yet Heritage, and others who support NDAA detention, insist that the federal government legitimately possess the authority to come into my home, drag me off and treat me as a war criminal if somebody accuses me of substantially supporting an associated force. Or something.

Seem farfetched? Consider the ordeal Nancy Genovese endured. The Connecticut mother of three was taking pictures outside of Gabreski Airport in Suffolk County, N.Y.  A Southampton Town Police officer pulled her over as she was leaving and demanded to know why she was photographing this airport. For the next six hours, law enforcement forcibly detained the Genovese, accusing her of posing a security threat and of possible terrorist activity. Authorities drug her off to jail and held her overnight. Ultimately, she was charged with trespassing – a charge prosecutors eventually dropped because she was on public property. Her ordeal wasn’t over. Read her whole story HERE.

But it’s OK. The government will only use detention powers for good, against the big, bad, evil terrorists.

Forgive my skepticism.

(Did I just hear a drone fly over?)

Anyway, Heritage goes on to assure us all that the provisions in the NDAA don’t change anything.

In summary, last year’s NDAA detainee provisions do not create or expand the government’s ability to detain U.S. citizens. In no way does the NDAA negatively impact or change the constitutional rights of U.S. citizens.

I’ve heard this a million times, from everybody I’ve ever talked to that supports this garbage. And if it’s true, I would love for somebody over there to answer me this one question – because nobody has managed to answer it yet.

If the NDAA detention provisions pose no threat to American citizens, why did the Senate vote down the original Feinstein amendment, which provided in the simplest terms that section 1021, “does not include the authority to detain a citizen of the United States without trial until the end of hostilities?”

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The bottom line is that the NDAA empowers the president to lock up people on American soil and throw away the key. We should not trust any president with such power. Not this president. Not the last president. And not the next president. In the words of Thomas Jefferson, “In questions of power…let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

The president has an obligation to defend the U.S., but no federal agent may exercise powers not granted, or violate the Bill of Rights, even in pursuance of a legitimate constitutional role. The U.S must vigorously defend itself against terrorist threats, but our defense cannot come at the expense of our most fundamental values. We run the risk of destroying the very essence of America in our attempts to defend her.

For a more detailed legal analysis on the NDAA, click HERE.

This is an area in which there has been a great deal of confusion, largely because few constitutional writers are familiar with how 18th-century lawyers and judges construed documents.

We can begin clearing the confusion by defining the terms. The phrase original intent usually means the subjective opinion of those who wrote the Constitution as to what a particular provision was supposed to communicate. Original intent also is called the intent of the Framers. Researchers try to deduce the original intent by examining both direct evidence (what the 55 drafters said during the Constitutional Convention), and indirect or circumstantial evidence. Examples of the latter include, among other things, what people said about the instrument during the ratification debates, the meaning of key words in common discourse and in contemporaneous dictionaries, and their meaning in legal and literary sources.

The original understanding of a constitutional provision usually refers to the subjective opinion of the 1648 state convention delegates who ratified the Constitution. Principal sources are the records of the ratifying debates. For example, if Delegate X explained a provision in the document in a particular way and no one contradicted him, then (particularly if Delegate X was a proponent) you can infer that other delegates understood the provision the same way. Indirect and circumstantial evidence for original understanding include what Framers and commentators said about the provision, as well as the meaning of the words in common discourse and in contemporaneous dictionaries and legal sources.

The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth.

Obviously, the evidence used in prove each of the three concepts overlaps. In practice, moreover, the original intent of a provision is usually the same as the original understanding or original meaning.

But differences do occur. For example, during the 1787 drafting convention, John Dickinson stated, without contradiction, that ex post facto laws were always retroactive criminal laws, and did not include retroactive civil laws. (Examples of the latter are retroactive taxes and statutes to cure defective legal proceedings.) That, apparently, formed the Framers’ original intent. But during the ratification debates, it became clear that many, perhaps most, people thought that an ex post facto law might be civil as well as criminal (original meaning). So the ratifiers worked out a deal by which the term was understood include only criminal laws. This was the original understanding.

In the event of a conflict between intent, understanding and meaning, which should control?

The key to answering that question is to answer another: “When the Constitution was adopted, what was its legal force? In other words, how would the courts of the time have interpreted it?

The Constitution is, of course, a legal document, so you can find the correct response to this question by investigating how judges, and other lawyers and public officials interpreted legal documents of the same general kind during the Founding Era. In 2005, I spent much of a sabbatical at Oxford University researching this question. I learned the following:

*    Most legal documents, including state constitutions, were interpreted according to the “intent of the makers” of the document.

*    Just as a statute was interpreted by the intent of the legislators who gave it force rather than by the intent of the legislative staffers who wrote it, the Constitution was to be interpreted by the understanding of the ratifiers who gave it force rather than the intent of the Framers who wrote it.

*    When judges and other lawyers referred to the “intent of the makers” they meant the genuine subjective intent. The subjective intent of the ratifiers is the same as original understanding.

*    Where the original understanding was not recoverable, either because the evidence was lacking or hopeless contradictory, Founding-Era courts and lawyers applied the meaning a reasonable person would have given a term—that is, original meaning.

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Thus, the original legal force of the Constitution—as it would have been applied by Founding-Era judges, lawyers, and officials—is based on the original understanding; if this is not recoverable, then you apply the original meaning. Original intent is useful only insofar as it tends to prove understanding or meaning.

More discussion on this topic appears in my book, The Original Constitution: What It Actually Said and Meant. Those who wish detailed citations and full scholarly discussion can read the article that emerged from my Oxford research: The Founders’ Hermeneutic: The Real Original Understanding of Original Intent.

Earlier last week, the federal government announced that the Air Force might be dispatching drones to a backyard near you. The stated purpose of these spies in the sky is to assist local police to find missing persons or kidnap victims, or to chase bad guys.

If the drone operator sees you doing anything of interest (Is your fertilizer for the roses or to fuel a bomb? Is that Sudafed for your cold or your meth habit? Are you smoking in front of your kids?), the feds say they may take a picture of you and keep it. The feds predict that they will dispatch or authorize about 30,000 of these unmanned aerial vehicles across America in the next 10 years. Meanwhile, more than 300 local and state police departments are awaiting federal permission to use the drones they already have purchased – usually with federal stimulus funds.

The government is out of control.

If the police use a drone without a warrant to see who or what is in your backyard or your bedroom, or if while looking for a missing child the drone takes a picture of you in your backyard or bedroom and the government keeps the picture, its use is unnatural and unconstitutional.

I say “unnatural” because we all have a natural right to privacy; it is a fundamental right that is inherent in our humanity. All of us have times of the day and moments in our behavior when we expect that no one – least of all the government – will be watching. When the government watches us during those times, it violates our natural right to privacy. It also violates our constitutional right to privacy. The Supreme Court has held consistently that numerous clauses in the Bill of Rights keep the government at bay without a warrant.

Even when we don’t have an expectation of privacy, we do have a right to be left alone. But merely watching us in public isn’t enough for the police, as many street corner cameras are equipped with listening devices and tiny megaphones. We can expect that these devices will soon bark commands: “Put down that BlackBerry.” “Look to your right before crossing.” “Don’t kiss her; a car is coming.” Actually, Big Brother is coming, and he’s not smiling.

Big Brother is watching from the skies, as well as the streets. This started when the Department of Defense decided to offer help to police – and they are prepared to accept. Never mind that the military may not lawfully operate within our borders, except in the case of rebellion, and then only when publicly authorized by the president. Never mind that the military may not lawfully be used for law enforcement, except in the case of disaster, and then only when publicly authorized by the president. And never mind that this use of drones by the Air Force was not the result of legislation debated and enacted by Congress, but was done under the authority of the president alone.

Add to all this the use of drones to kill people. President Obama has argued that he can use drones to kill Americans overseas, whose deaths he believes will keep us all safer, without any constitutional due process whatsoever. His attorney general has argued that the president’s careful consideration of each target and the narrow use of deadly drones are an adequate substitute for due process. Of course, no court has ever ruled that way. The president’s national security adviser has argued that the use of drones is humane since they are “surgical” and only kill their targets. Of course, that’s not true, but it misses the point. Without a declaration of war, the president can’t lawfully kill anyone, no matter how humane his killing.

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How long will it be before the Air Force and the police adopt the unconstitutional arguments of the president’s wrongheaded advisers and use the drones not only to spy but also to kill Americans in America?

The whole reason we have a Bill of Rights is to assure that tyranny does not happen here, to guarantee that the government to which we have supposedly consented will leave us alone. Do you think the government accepts that? Would you feel safe with a drone in your backyard? Would you feel like you were in America?

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.

Copyright © 2012 Andrew P. Napolitano

In a historical ruling on Hedges, et al. v Obama, et al. on Wednesday, May 16, Judge Katherine Forrest of the United States District Court for the Southern District of New York preliminarily enjoined the Federal Government from enforcing section 1021 of the 2012 National Defense Authorization Act (NDAA).

Section 1021 purports to authorize the President to designate all persons — including U.S. Citizens found within the U.S — as enemy combatants, subject to the Law of War, including; Indefinite detention without trial or charge, transfer to foreign jurisdictions or entities (commonly known as extraordinary rendition), and military tribunals. Section 1021 authorizes enemy combatant status not just for “terrorists,” but also for the broad and undefined; those who “substantially support Al-Qaeda, the Taliban or Associated Forces that are engaged in hostilities against the United States or its coalition partners.” Those covered by section 1021 are unclear and subject to abuse because it is not limited to individuals directly responsible for terrorism or belligerent acts; it applies to vague ‘substantial support’ for undefined ‘associated forces.’ Section 1021 leaves these key terms undefined; and up to the President’s discretion. Importantly, section 1021 does not require a mens rea or scienter requirement to one’s substantial support. Thus, someone may be subject to the NDAA without ever knowingly or recklessly providing such substantial support.

Mr. Hedges and his co-plaintiffs — reporters, activists, organizers and even a politician from Iceland critical of the U.S. war on terror — have asserted that section 1021 is vague to such an extent that it provokes fear that certain of their potential associations and expressions, including journalistic, political and organizing activities, could subject them to indefinite or prolonged military detention; violating their First Amendment Free Speech and Fifth Amendment due process rights. Each Plaintiff testified that section 1021 has already had a chilling effect on such associational and expressive activities–and it would continue to do so. Mr. Hedges, for example, is a reporter that has interviewed numerous alleged terrorists and terrorist organizations, and testified he no longer interacts with or reports on many such groups out of fear section 1021 may subject him to military detention.

The Government opposed the plaintiffs’ request for preliminary injunctive relief on three grounds. First, that plaintiffs lack standing because they have not been detained pursuant to the NDAA. Second, that even if the Plaintiffs have standing, they have failed to demonstrate an imminent threat requiring preliminary relief. Finally, the Government argued that Section 1021 of the NDAA is simply an “affirmation” or “reaffirmation” of the authorities already conferred by the 2001 Authorization for Use of Military Force (“AUMF”), and thus, the NDAA does not now suddenly subject the Plaintiff to any new immediate disposition that requires injunctive relief.

On April 16, 2002, The Tenth Amendment Center filed an Amicus Curiae brief in support of the Plaintiffs, alleging that section 1021 of the NDAA is unconstitutionally vague and overbroad because it is does not define who is covered and what conduct is prohibited. The Tenth Amendment Center put forth compelling arguments that those covered by the “substantial support” standard are unclear because that term is undefined and overly broad, and importantly, there is no knowing requirement to such support. Moreover, the NDAA does not define the “associated forces” one may not provide “substantial support” to. This rank vagueness is violative of Fifth Amendment due process rights.

The Tenth Amendment Center also discussed how the NDAA is unconstitutional on its face because it is rooted in the 2001 AUMF, which is itself an unconstitutional congressional delegation of war making authority, and that the NDAA violates Article III section III’s treason clause because it forgoes the constitutional requirements to prove treason. These later arguments were not central to the Courts ultimate decision.

STANDING

As a Preliminary matter, the Court was required to decide whether or not the Plaintiffs possessed standing to contest section 1021 prior to being disposed according to its provisions. Standing is established in this case if a litigant shows a concrete injury in fact, or imminent injury, caused by section 1021, that a preliminary injunction can remedy. Because the Plaintiffs’ have not been formally subject to the NDAA, it is more difficult to establish standing to contest the law. The Plaintiffs took the position that their present cessation of journalistic and political associations and expressions, as well as their well-grounded fear of the imminent application section 1021 due to their past and future activities, establishes the concrete injury sufficient for standing.

The Court’s method of analysis first dispenses with the Government’s contention that the section 1021 is nothing more than an affirmation of the AUMF. The Court found — as advanced by the Tenth Amendment Center and Rhode Island Liberty Coalition for months — the NDAA far exceeds those powers permitted by the 2001 AUMF. This is an important distinction because if section 1021 only reaffirmed the already-existing 2001 AUMF powers of the executive, and the Plaintiffs’ various activities have not so far subjected any of them to those already-existing powers, the Plaintiffs’ argument that section 1021 created imminent peril (the requirement for Court-issued preliminary injunction of a Congressional Act) would be undermined.

Instead, the Court found that the 2001 AUMF was limited to responding to the 9/11 attacks, while section 1021 casts a broad net that potentially encompass numerous of the Plaintiffs’ activities unassociated with 9/11 or those responsible for 9/11. In fact, and of central importance to the Court’s decisions, was that the Government lawyers could not even define what section 1021 “substantial support” encompassed, and they would not aver that the Plaintiffs past, current and potential future journalistic and political expressional and associational activities would not subject them to section 1021.

“I can’t make specific representations as to particular plaintiffs. I can’t give particular people a promise of anything” said the Government Lawyer at hearing.

The Court aptly noted: “It must be said that it would have been a rather simple matter for the Government to have stated that as to these plaintiffs and the conduct as to which they would testify, that Section 1021 did not and would not apply, if indeed it did or would not. That could have eliminated the standing of these plaintiffs and their claims of irreparable harm. Failure to be able to make such a representation given the prior notice of the activities at issue requires this Court to assume that, in fact, the Government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by § 1021.”

The Court further found that the Plaintiffs’ expressive and associational deprivations are actual current, substantial,injuries to the Plaintiffs, and that the Plaintiffs’ also faced future, imminent and particularized invasion of legally-protected interests as potential covered persons under NDAA section 1021. The Court rightly found that these current and imminent harms, coupled with the significant gravity of indefinite detention, enabled the Plaintiffs to contest the NDAA’s constitutionality without first formally being designated as subject to section 1021 by the Government.

Accordingly, the Court found that the Plaintiff’s had standing because each “has shown an actual fear that their expressive and associational activities are covered by § 1021; and each of them has put forward uncontroverted evidence of concrete–non-hypothetical–ways in which the presence of the legislation has already impacted those expressive and associational activities.”

INJUNCTIVE RELIEF 

In order to demonstrate entitlement to preliminary injunctive relief, the Plaintiffs were required to show (a) a likelihood of success on the merits of their claims of section 1021’s constitutional infirmity; (b) that they will suffer irreparable harm in the absence of the requested relief; (c) that the balance of the equities tips in their favor; and (d) that the injunction is in the public interest. Even in the face of the maxim that the Court must seek to find an interpretation of the statute that upholds the constitutionality of the legislation, section 1021 is so overbroad and vague that the Court was unable to do so.

The first, and most important, analysis concerns section 1021’s constitutionality. The Plaintiffs first assert that Section 1021’s over breadth captures their expressive and associational conduct in violation of their rights under the First Amendment. Separately, the Plaintiffs, and the Tenth Amendment Center in its Amicus Curiae brief, assert that the statute’s profound vagueness violates due process rights under the Fifth Amendment.

The Court was first tasked with determining which type of scrutiny to apply to the NDAA section 1021’s alleged infringement on the First Amendment’s associational and expressive rights; the tepid rational basis test, the heightened scrutiny test, or the strict scrutiny test where the Government must present a compelling justification for its infringement. Strict Scrutiny is an extremely heavy balancing test for the Government to overcome because it involves the infringement of a fundamental Constitutional right; in this case the content-based deprivation of First Amendment political expressive and associational conduct.

The Court justly found that Strict scrutiny applied because “each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by section 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within section 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.”

Applying the strict scrutiny test, the Court remarked on long-established case law holding that only the “exceptional circumstances” of political speech that incites violence, is obscene, or is incidental to criminal activity, may be prohibited. The Plaintiffs past and potential future political conduct, which the Court concluded is encompassed by Section 1021, simply does not rise to those levels prohibited political speech. Accordingly, the Court concluded that section 1021 is unconstitutional as a violation of the First Amendment.

The Second prong of Constitutional analysis concerns the Plaintiffs’, and the Tenth Amendment Center’s, contention that NDAA section 1021 is unconstitutional as a violation of the FifthAmendment’s Due Process Protections. To satisfy the Due Process Clause of the Fifth Amendment, individuals are entitled to understand the scope and nature of statutes which might subject them to criminal penalties. Although the NDAA concerns military law, the punishment is criminal in nature, and the Court accordingly applied the criminal statute test: A penal statute must define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement. That analysis is performed against the backdrop of a strong presumption of validity given to acts of Congress.

The Court then remarked on an interesting facet of Constitutional examination: a Due Process analysis usually is “as applied” — meaning that the facts of those allegedly deprived of due process drive the consideration, or put otherwise; ‘did this person’s treatment violate due process.’ Except however, where the statute does not contain a “mens rea” or scienter requirement, e.g. a requirement that one knowingly or recklessly committed the prohibited conduct. As argued by the Tenth Amendment Center, the Court found that section 1021 does not have a mens rea or scienter requirement; that one may still even be subject to section 1021 even though they had no knowledge their conduct “substantially supported” a terrorist organization. The Court found that in these circumstances, Constitutional challenges based on due process may be asserted based on the plain language of the statute, without regard to the underlying facts of the complaining litigant.

Moving on to its analysis, the Court remarked: “Before anyone should be subjected to the possibility of indefinite military detention, the Due Process Clause of the Fifth Amendment requires that individuals be able to understand what conduct might cause him or her to run afoul of § 1021. Unfortunately, there are a number of terms that are sufficiently vague that no ordinary citizen can reliably define such conduct.” The Court refers specifically to section 1021’s prohibition of providing vague “substantial support” for Al-Qaeda, the Taliban or undefined “associated forces.”

The Court noted that although “associated forces” may be subject to definition (“individuals who, in analogous circumstances in a traditional international armed conflict between the armed forces of opposing governments, would be detainable under principles of co-belligerency”), not even the Government was able to define precisely what “direct” or “substantial” “support” means. And of course, the Government was unable to state that plaintiffs’ conduct fell outside section 1021. In addition, the Government even conceded that the statute lacks a scienter or mens rea requirement of any kind. Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.

The Court stated that “the vagueness of § 1021 does not allow the average citizen, or even the Government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope” and emphatically concluded that “In the face of what could be indeterminate military detention, due process requires more.” Furthermore, the Court ruled that the section 1021 is so overbroad and unspecific that the Court is not able to construe it in a limiting manner to comport with the Constitution. To do so, the Court would have to rewrite the law to such a great extent that it would unconstitutionally adopt the Legislative function; this is strictly prohibited.

Finding that the section 1021 expands that which was authorized by the 2001 AUMF and is an unconstitutional deprivation of First and Fifth Amendment guarantees, and because the Government could not say whether the Plaintiffs’ conduct subjects them to section 1021, the Court then easily concluded that the potential of the Plaintiffs’ indefinite detention constituted imminent and irreparable  harm.

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The Court finally recognized the strong public interest in citizen retention of First and Fifth Amendment rights, and determined that these fundamental rights balanced the equities between the parties in favor of the Plaintiffs. The Plaintiffs risk of indefinite detention far outweighed the Government’s proffered powers under section 1021. Indeed, the Court noted that if an injunction issued, the Government would still possess all the war powers of the 2001 AUMF, just not the expansive and unconstitutional ones contained within section 1021.

The Court then granted the Plaintiff’s motion for preliminary injunction halting enforcement of section 1021 of the NDAA pending further order of the Court or amendments to the statute rendering its Opinion & Order moot.

One extremely interesting wrinkle is that Plaintiffs Kai Wargalla, of the UK, and Brigitta Jonsdottir, of Iceland, are not U.S. citizens, and for the most part, do not live in the U.S. Yet the Court did not distinguish between these individuals’ and the citizen-Plaintiffs’ Constitutional rights. The Court also did not forbid the application of section 1021 to only the U.S. homeland. Thus, the Court’s decision can be interpreted as applying to citizens and non-citizens alike, potentially located anywhere.

Striking!

The path the Government takes is unclear. There likely will be an appeal to a higher Court where most of these questions will again be dealt with. However, on appeal, the Court’s findings that the section 1021 does apply to the Plaintiffs will likely be preserved, and will form the factual basis for appeal. The system works, for now!

Vince Brown, for example, gets the ball rolling with this:

“I don’t find the appeal here, isn’t all it says is that they will simply just sit back and watch the feds do what they want?”

Brian Ryman goes a little deeper:

“While the state of Virginia has passed what many feel to be the first significant blow against the NDAA , I have a few reservations about what is purported by some to be a victory. My main concern is that the bill has no provisions for Virginia state agencies to interpose themselves between the federal authorities and its citizens. This should be the focus of the legislation….”

The implication here is that unless there’s a state law passed requiring conflict – a state agency standoff vs a federal agency – which is dangerous indeed – then somehow there’s little to no value.

But is that really the case? Of course not. More later.

Tom Rankin takes it a step further, insisting that anything but physical pushback on the feds is not only worthless, but some kind of a political trick. Here’s what he had to say:

“Just how does this stop the Feds from enforcing NDAA. All it says is you can enforce NDAA in my state but I will not help you. This is pure bull. It is just feel good legislation that gets the public off the politicians ass. I am very disappointed in The Tenth Amendment Center and question it’s motives.”

Interesting.

I’ve often heard that converts to a new religion are commonly known to be more zealous than people raised in those same beliefs. I guess here at the TAC we’re finding the same thing in our own movement – for nullification.

The problem, though, is this – these people, while probably quite well-intentioned, are either being misdirected, or are just misinformed about the big picture.

NON-COMPLIANCE IS A BIG DEAL

To clarify, we should first define the word nullification. It is “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.”

Thomas Jefferson referred to nullification as the “moderate middle ground” – the effective path that lies between violent and bloody revolution on one hand and unlimited submission on the other.

With that in mind, we can recognize that a nullification of a federal act can take on all kinds of different forms. It often requires an entire puzzle – and each piece of that puzzle plays an important part. There’s education, outreach, non-compliance, and more. It doesn’t always a physical interposition by local agents – standing between you and the federal government.

And while it sure gets the testosterone boiling, an O.K. Corral-style standoff is not needed, and is almost never effective. Consider the state-level resistance to the 2005 Real ID act. Over the past five years, we’ve learned that a federal law can be effectively held at bay or even pushed back through non-compliance alone.

When Virginia’s HB1160 was being debated, Delegate Bob Marshall gave a perspective on the importance of non-compliance when he said:

“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.”

The federal government most certainly needs compliance, if not outright assistance, from the states when it does its dirty deeds. Information-sharing, logistics assistance, access to infrastructure, help from sheriffs blocking roads, and the like. They can rarely pull things off without help from state and local officials. Just ask the DEA when they come to California. They’re never able to pull off a raid without the help of the local sheriff or police departments. Refusing compliance is a big deal – and it will set the stage for others to do the same.

WWRPD?

When Rosa Parks refused to move the to back of the bus – she taught us just how to deal with laws that are unconstitutional – immoral – and unjust.

On one end of the spectrum, she didn’t call for her local friends to interpose on her behalf, using force and guns to arrest the progress of evil being waged against her. And, on the other end of the spectrum, she didn’t accept the notion of unlimited submission either.

Before refusing to comply, Rosa Parks didn’t first pass a law to physically stop people from violating her rights. She didn’t need to arrest an offending federal or state agent to move her cause forward.

Rosa Parks also didn’t put the fate of her liberty in the hands of the political system.

She didn’t simply comply and spend a bunch of time knocking on doors advocating for a new candidate for office. She didn’t comply and then spend her time in an expensive and unwinnable lawsuit. She didn’t just comply – and then plan on voting in a new politician to change the law which was oppressing her.

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She did something that each one of us needs to start doing more often in our lives. She sat there and said NO.

When Rosa Parks refused to move to the back of the bus, she didn’t have any “teeth” in her action. Her non-compliance helped expand the growth of a massive movement which resulted in the change she sought.

Whether the issue is mandates, or indefinite detention, or the TSA, or anything in between – that’s our blueprint for freedom. I hope you’ll join us.

The New York Times has published a widely re-printed report about the extent to which federally guaranteed and subsidized college loan programs have driven up the cost of tuition and leaving an entire generation “hobbled” by debt.

Federal promotion of student loans began as a benefit for veterans—part of the compensation authorized by the Constitution’s grant to Congress of power to “raise and support Armies” (Article I, Section 8, Clauses 12) and “provide and maintain a Navy” (I-8-13).  In the 1960s, however, Congress expanded eligibility to nearly all students. There was no real constitutional justification for such a move, although the pretextual basis is a spending power said to be found somewhere in I-8-1—a provision that, construed correctly, grants only enough spending authority to run the tax system. A fuller explanation appears in my book The Original Constitution: What It Actually Said and Meant.

The results of unrestrained federal subsidies were predictable. As federal health care involvement has done, federal college subsidies have bloated the nation’s academic establishment and, by increasing cost, have harmed those people the subsidies allegedly were designed to help. These programs also probably have hurt the economy.

To give you an idea what has happened to cost, consider Cornell Law School, where I received my law degree. When I began law study there in 1970, tuition was $3000 per year—or just under $18,000 in today’s inflated currency. (Maintaining a stable currency is another thing the federal government can’t seem to do.) Today, tuition at Cornell is over $55,000 per year. Fees and other expenses jack up the tab to nearly $75,000.

The ways some academics justify federal subsidies are intellectually shameless. For example, they point to studies showing that college-educated Americans earn more over their lives than other Americans. But they neglect to mention that college-educated Americans are initially smarter than those unable to succeed in college. Take away college and they would still outperform.

Also, it doesn’t always follow that more is better. Spending 1% of GDP on road building is better for the economy than spending nothing at all, but that doesn’t mean that it would help the economy to confiscate half of what the American people earn and blow it all on blacktop.

Government higher-ed spending is one area in which we are likely on the downside of the benefit curve. Partly this is because the federal government is encouraging some to attend college who would be better off not doing so. Partly it is because of the accompanying deterioration of academic integrity (political correctness). Partly it is because of the debt problem the feds have created.

Empirical support for the view that we are on the downside of the benefit curve comes from economist Richard Vedder in his book, Going Broke By Degree. Vedder’s statistical comparisons show that states spending less on their public universities actually enjoy better economic growth than states spending more. Now, that doesn’t mean state governments should spend nothing at all on higher ed. But it does suggest that current levels of subsidy (federal + state) are too high.

So if federal higher-education subsidies are hurting the economy and the students who were supposed to benefit, then whom are they really benefiting?

One clear answer is: “Left wing politicians and the academics who support them.”

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Non-veteran higher-education subsidies are largely pay-offs to the  academic establishment. By greatly expanding the number of workers in the famously left-of-center academic industry, left-of-center politicians expand their vote and contribution base. Academics also support leftwing politicians in indirect ways—by promoting the leftist agenda on campus, by creating “academic” programs by which students provide politicians with support, and by providing public recognition to selected politicos through honorary degrees, graduation speaking opportunities, and the like.

The American Founders would have called this “corruption,” and they were keenly aware of the potential. They had experienced it under the British constitution. They understood that corruption occurs in all governments, but they installed in the U.S. Constitution several devices to curb it. Two of these were the “general Welfare” limitation on spending and the restriction of federal power to enumerated subjects.

The current student loan mess—like the health care mess—became possible because the Supreme Court stopped enforcing those restraints.

It’s for this very reason that the present system is unfit. It looks great at first, on paper. One branch writes the laws, an entirely different branch is supposed to carry them out, and still a third group is to act as judges. But closer examination reveals something that should raise one’s suspicions about the effectiveness of separation.

First, the idea that an executive officer chooses who is to be on the court is strange, if that court is really to be unbiased and “blind.” Ah, but the president only gets to have his choice if the senate agrees, comes the reply, and since the people elect the senate, then it’s like the people are electing the judges. Except they aren’t. The conventioneers in Philadelphia were pretty clear how they felt about pure democracies, and many wrote of the troubles accompanying such a system. Otherwise, it would make sense for the people to elect the judges to the Supreme Court directly.

Second, while the constitution makes clear how the powers are to be divided, which function will be given to what body, it doesn’t really place any limits on who will actually fill the roles. Because of this, individuals move from one branch of government to another, as the historical record shows. The result, as might be expected, is that the lines between the branches are blurred and arbitrary rule becomes the norm.

Let’s begin with a few notable observations. More than half of all U.S. presidents have been legislators at the federal level; half of these executives spent at least one term in both houses of congress. As for the Vice Presidents, more than seventy percent were members of congress before taking office. Some of these were single terms, not long enough to really become entrenched and part of the system. But a number of them held senior leadership in their respective houses. Three (Polk, Colfax, and Garner) were speakers of the house; another three spent time as President Pro Tempore of the Senate, and a few were Majority/Minority Leaders of the House or Senate, or Chaired committees. In several cases the president never spent time in the federal congress, but was a member of a state legislature, as in the cases of Theodore Roosevelt and Jimmy Carter.

There are many other instances of this round-robin among branches. Take for example Justice Elena Kagan, who was President Obama’s Solicitor General before her appointment to the high court. She also was an attorney for President Clinton for most of his second term.

Four other members of the current court have held positions as attorneys for the government. Under President Reagan, Chief Justice John Roberts was a Special Assistant to the Attorney General and later an Associate Counsel to Reagan. Clarence Thomas was an Assistant Attorney General in Missouri and later spent time on the staff of a U.S. Senator from Missouri. Samuel Alito has been the Deputy Assistant Attorney General, Assistant to the Solicitor General, and an Assistant U.S. Attorney. Sonia Sotomayor got her law career started as an Assistant District Attorney.

Rest assured these are not the only instances of inter-governmental musical chairs from within the court. Former Chief Justice John Paul Stevens worked as an Associate Counsel to the Judiciary Committee of the U.S. House. Recently retired Justice David Souter was the Attorney General from the state of New Hampshire. William Rehnquist was an Assistant Attorney General in the Nixon Administration. Chief Justice Earl Warren was both the Attorney General and Governor of California. Charles Evans Hughes was Governor of New York. Harlan F. Stone was an Attorney General under FDR. The list goes on.

Then there is the case of William Howard Taft, a creature all his own. His first position as a senior government official came when he was appointed as the Solicitor General for Benjamin Harrison’s administration. Next he filled the bench of the newly established Sixth Circuit Court of Appeals. He later became President of the United States, and was eventually appointed to the Supreme Court where he spent nine years as the chief justice.

What all of this means is that powers cannot be adequately separated when the same people are filling the roles of the various branches of government. Should anyone be surprised that the Supreme Court has more or less been subservient to the Executive when so many members are and have been members of the executive branch? Should we really expect for the legislature to be independent and jealous of the powers of the president, if so many of the senior executive branch officials were members themselves, or even senior leaders of the congress?

I think the questions answer themselves. It’s not as if the executive branch is filled with new blood every few years, where presidents and their cabinet officials have to learn the system and persuade the legislature to go their way on some things. Just like the courts in this country aren’t presided over by defense attorneys and public defenders. In both cases the politically well-connected are the ones who overwhelmingly find themselves in places of power.

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This is one reason, among many, that relying on members of the federal government to limit their own power is a losing proposition. Voting them out and refusing to continue the cycle is also a rather ineffective tool, given how high the turnover rate is already. There’ve been almost two thousand senators and close to 11,000 representatives in the last two hundred and twenty some-odd years. Not much has changed – for the better – but a lot has gotten worse.

This is why nullification at the state level is so important. It’s certainly not a silver bullet, but the states can act as an important check on federal tyranny. The danger is, of course, that state governments will not be so cooperative or careful to defend the rights of residents. This is why nullification at the county and municipal levels is just as important and should not be scoffed at or ignored. Finally, peaceful resistance and non-violent civil disobedience, essentially nullification at the individual level, is one of the most powerful of all tools for liberty. We should use all of them.

“Step right up, step right up! Power to the states, right here! Come play the Tenth Amendment game!”

As I approached, I realized none other than Mitt Romney was running the booth. Behind him, I saw six bright yellow milk jugs stacked in a pyramid. Curiosity got the best of me.

“What’s this about?” I inquired.

“Knock down the federal health care pyramid and win a prize!” Romney boomed, somehow managing to speak without disturbing his bright toothy smile.

“What’s the prize,” I asked, still somewhat skeptical.

“Why, your liberty!” he beamed.

I picked up the hard wooden ball. Printed on the side were the words, Tenth Amendment.

“What’s this?” I asked, weighing the ball in my hand. It felt good. Right. Powerful.

“Well, it’s all about the Constitution. The federal government doesn’t have the right to make you buy health insurance,” he said knowingly.

“You mean like you made the folks in Massachusetts do?” I asked hesitantly.

A frown flickered across his face; then the smile returned.

“There are some similarities between what we did in Massachusetts and what President Obama did, but there are some big differences. And one is, I believe in the Tenth Amendment of the Constitution. And that says that powers not specifically granted to the federal government are reserved by the states and the people,” he said. “We put together a plan that was right for Massachusetts. The president took the power of the people and the states away from them and put in place a one-size-fits-all plan. It’s bad law.” 1

I rubbed the ball absentmindedly, pondering my options.

“Go on, try it,” he urged.

“How much?”

The smile broadened. “Not much. Just one token.”

I pulled a token out of my pocket and flipped it in the air a few times.

“Come on, give it a toss,” Romney said expectantly.

What the hell, I thought. Seems easy enough. And lord knows, I could use some more liberty. So I tossed Mitt the token, took aim and heaved the ball at the milk jugs.

Thwack!

A perfect throw.

Yellow jugs shot into the air, pirouetting like ballerinas before tumbling to the ground. I did a little victory fist-pump and stepped forward to collect my prize.

But Mitt looked angry.

“You lose!” he howled.

“What?” I responded incredulously. “I knocked over all of them. I win.”

Romney pointed at some green jugs scattered about among the yellow. “You knocked over the green ones. That’s against the rules. You lose.”

I hadn’t even noticed the green ones, but as Romney’s assistant reset the jugs, I realized that green ones were positioned in the shadows directly behind the yellow jugs, placed in such a way as to become virtually invisible. The setup made it next to impossible to knock over the yellow jugs without also toppling the greenies.

“So, what are the green ones,” I inquired, trying to contain my anger at being jipped.

“Medical marijuana,” Romney sneered with obvious disdain.

“And I can’t knock those over with the Tenth Amendment ball?”

“I think medical marijuana should not be legal in this country. I believe it’s a gateway drug to other drug violations. The use of illegal drugs in this country is leading to terrible consequences in places like Mexico, and actually in our own country. I oppose legalization of marijuana. I oppose legalizations of other kinds of drugs.” 2.

“But isn’t that also a decision reserved to the states and the people?”

“Go away, loser,” he growled, turning his back on me.

I stomped away, angry. But what could I do? I should have known the game was rigged. They all are, right?

So I ambled along the midway, bought a big stick of cotton candy, washed it down with a cold Coke and then gnawed my way through a funnel cake. I felt better. Giddy almost.

That’s when another booth caught my eye.

This one had louder music and brighter lights. AC/DC blasted from loudspeakers, and a strobe light played over the ground in front of the game. Even from a distance, I could see President Obama manned this booth. The familiar “O” logo painted on the roof was a dead giveaway.

Obama beckoned me over. “Step right up! Step right up! Play the greatest game at the carnival,” he intoned enthusiastically, flashing his pearly whites as he spoke.

“So, what’s this game?” I asked, my recent frustration now a faint memory.

“It’s the Tenth Amendment game,” Obama quipped. “Power to the states.”

“Wait a minute,” I said. “I played that game already over…”

Obama cut me off. “This one is better. Easier. And more fair. Just shoot a duck and you win.”

I leaned in and peered closely at the row of ducks on a conveyer belt slowly making their way from left to right across the booth. The ducks alternated – two males with a tux, followed by two females in wedding gowns.”

The president apparently read the confusion on my face. “Gay marriage!” He handed me a gun with Tenth Amendment printed on the side. “I respect the beliefs of others, and the right of religious institutions to act in accordance with their own doctrines. But I believe that in the eyes of the law, all Americans should be treated equally. And where states enact same-sex marriage, no federal act should invalidate them.” 3.

“What do I get if I hit one,” I asked, weighing the gun in my hands. It felt good. Right. Powerful.

A presidential pause.

“Liberty.”

I was sold. The sign indicated it just cost one token, so I flipped one over to Obama and he plucked it out of the air. I aimed…steady…slowly pulled the trigger…

Plink.

Over went the duck.

But I knew in that moment I wouldn’t win a prize. A cannabis plant hidden behind the duck fell over too.

“I’m sorry. You lose,” Obama said in a patronizing tone

“Let me guess,” I say, resignation dripping from my words. “Medical marijuana.”

“Let me be clear, I am the president.” Obama lectured. “State medical marijuana programs violate federal law. I must send in the DEA to arrest those criminals so my Justice Department can prosecute them all.”

“But isn’t medical marijuana also an issue that should be left to the states and the people?”

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“Shut up, loser.”

I glared at the president. “So you can’t win. This game is rigged. You just want power to do things your own way!” I bellow. “You are nothing but a carnival huckster. Just like that other guy, Romney!”

Obama merely smiled.

“What did you expect?” he asked with a shrug. “We work for the same people.”

The trial of the alleged masterminds of 9/11, which began last week at the U.S. Naval Base in Guantanamo Bay, Cuba, will address some of the most profound issues of our era. Are natural rights truly inalienable, as Thomas Jefferson wrote in the Declaration of Independence, or can the government take them away from those it hates or fears? Does the Constitution protect the rights of all persons who come in contact with the government, or does it protect only certain Americans, as the government argues? Can the government deny a person due process by changing the rules retroactively, or is the Constitution’s guarantee of due process to all persons truly a guarantee?

These are all questions that the government does not want to answer. But it should know better, because by structuring the trial after the crime was committed and by establishing retroactive rules – which are prohibited by the Constitution – that have never before been used in any American civilian or military court, Congress has created and the Obama administration will conduct a trial that will resemble none in our history.

The trial is being held in Cuba because President Obama caved to political pressure from New York City politicians who did not want the trial at the location where the murders took place. In one of the few rules of criminal procedure laid down in the Constitution itself, the Framers required all trials to be held in the same judicial district where the alleged crime took place. They were familiar with the British practice of trying colonists in London for alleged crimes committed in New York. But today New York politicians and their allies in Congress and the president think they can pick and choose which parts of the Constitution to uphold and which parts they can ignore.

The Constitution guarantees the right to confront evidence and witnesses. The colonists were all too familiar with Star Chamber, a British trial system in which evidence against an accused was summarized by a clerk of the court, rather than presented by witnesses with personal knowledge or revealed in documents for all to see. In trials at Gitmo, the government may summarize evidence for the court, and it may keep documents it plans to use away from the defendants.

The rules for this trial also permit hearsay: basically, anonymous accusations that were also the hallmark of Star Chamber. They permit the Secretary of Defense, who is the boss of both the prosecutors and the judge, to replace the judge if the secretary is displeased by his rulings. This is a procedure that is taken right out of the Communist Party playbook in Stalinist Russia.

Perhaps the most radical departure from American due process and pronounced return to Star Chamber is the congressional authorization for the admission of evidence obtained under torture. There is no question that these defendants were tortured. The CIA has admitted publicly that it waterboarded one of them 183 times and then destroyed the videotapes of the torture so jurors could not see how horrific this procedure is.

Torture is so abhorrent to American values that its use by rogue cops has resulted in what is known as the “shocks the conscience of the court” rule. This principle, which has been in place since colonial times, permits the court to dismiss the charges – no matter how grave – when the government’s behavior shocks the conscience of the court. And all intentional torture is in that category.

I understand the emotions that are fueling these prosecutions, and I understand the pain and loss suffered by those whose loved ones were murdered on 9/11, and I understand the horrific nature of the crimes for which these defendants have been charged. But in America, we still have the rule of law. And that means that no one is above the law and no one is beneath it. Everyone is subject to the law, and the government may not exclude anyone from its protections. That is the essence of our system of justice. It is mandated by the Declaration of Independence and the Constitution, and its preservation is the reason we have fought our just wars.

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This trial may have dire unforeseen consequences. From the president who opposed all this when he was a senator but now effectuates it, to members of Congress who enacted the Military Commissions Act that authorizes incarceration after acquittal (a procedure even the Soviets did not utilize), to the victims’ families who surely would not want this rough justice visited upon their children; all these people now crying for blood could one day see the ruination of due process in America, with this case as precedent.

What constitutes a fair trial is the due process of American justice, which is guaranteed and required by the Constitution itself. If we deviate from the moral values of that system for the people we hate, woe to us for making law retroactively and based on hatred.

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.
Copyright © 2012 Andrew P. Napolitano