Normally, my posts are related to family law matters, the area of my expertise. However, from time to time, there are matters I feel so significant to comment upon that I expand the scope of the blog. On the eve of the approaching New Year and the tail of thanksgiving holiday, we spend a lot of time being thankful for our lives, friends and family. However, it should also be a time where we are thankful for the freedoms that we have, the nation in which we live and the rights we are all free to enjoy.

Before I get on my soapbox, let me just say that I wholeheartedly and fully support any lawful action, prosecution and punishment of any individual who commits an unlawful act, whether terroristic or other, towards the US government or any individual act directed to another citizen. However, I do not and cannot support any law that abrogates the constitutional provisions that this great nation exists under. One such law is the 2012 National Defense Authorization Act (NDAA), which was recently passed by the Senate.

With among many other questionably unconstitutional provisions, the 2012 National Defense Authorization Act contains a provision that allows the US Military to indefinitely detain, without charge or trial, anyone they consider to be engaged in hostilities against the United States.

Even the simplest glance at the text of this law screams of unconscionability. How can our government even consider passing any law providing for government action and detention without charge or trial?  Arguably, the most significant constitutional protections of our country are the Constitution’s prohibition against trial for major crimes without indictment, the protection against self-incrimination and the expressed prohibition of punishment without due process of law (5^th Amendment, citations omitted) and the 6th Amendment's guarantee of a trial by jury.  The NDAA allows detention without charge or trial simply if the person “is considered” to be engaged in terroristic activity. 

There could not be a greater abrogation of these rights than that which is contained in the NDAA.  Title X, Subtitle D, Section 1031. Affirmation of the authority of the Armed Forces of the United States to detain covered persons pursuant to the authorization for use of military force, subsection (2) provides “a person who has a part of or substantially supported Al Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. Emphasis added.

Ironically, the ambiguities could not be clearer.  This language shows a clear potential for unfettered abuse. How many people could arguably be considered to have “a part of” or “supported” of Al Qaeda? Essentially, any person thought to be or accused of terrorist activities would fall into this group. Moreover, the subject individuals do not have to even have committed a specific act, only a “belligerent acts”, which I don't even know what that could possibly mean. The potential for abuse is unbelievable.  How can our nation consider indefinite detention, without charge or trial for a “belligerent act”?  Belligerent is synonymous with argumentative and quarrelsome.  This cannot be the standard employed for indefinite detention in the United States of America.

The NDAA goes on to provide, Section 1031 (C) (1) Detention under the law of war without trial until the end of the hostilities authorized by the authorization for use of military force. Again, such provision and its ambiguities allow for indefinite persecution. How can one possibly define when “hostilities end” in a subject such as terrorism? It is, unfortunate, always prevalent and, therefore, anyone prosecuted under this provision can and will be unlawfully detained indefinitely.

Even proponents of the act cannot deny this potential for unlawful, unfettered indefinite detention.  It has been stated that an amendment to the act that would have expressly forbidden the indefinite detention American citizens without trial was rejected.

Typical supporters and opponents of this type of litigation will say things such as “the recent terrorist attacks proceeding and including 9/11 require a more aggressive approach to eliminating future acts of terrorism.”  But those who truly understand the history of our nation and our constitutional provisions will understand that it is exactly at those times, where public fear is at its greatest that our constitutional protections and fundamental freedoms must be more zealously guarded.  It is at times of hysteria that these protections could be forfieted.  Then we will all live under a terroristic environment.

We must remember that this is not the first time our country has engaged in activities intended to persecute, detain and prosecute individuals without due process of law.

Most of us learned, quite superficially, about the Salem Witch Trials, which occurred in approximately 1692. However, none of us learn the specific details about the egregious conduct and punishment that our citizens experienced. The trials culminated in over 150 individuals been accused of witchcraft, 19 of them being hanged and one even being crushed to death (because he refused to enter a plea).  Can you imagine a United States citizen being physically crushed to death by our government?  It happened.

As we sit here today, we would never even consider that our government would crush an individual to death for the thought of practicing witchcraft. We now know, unfortunately in hindsight, how ludicrous such prosecutions were. However, at least 20 people lost their lives, one being crushed to death. Wikipedia cites this as “one of the most famous cases of mass hysteria.” 

Of course, we sit here today and say, “Well, that was back in the 1600’s.  We are more civilized and our constitutional jurisprudence has expanded with our nation’s maturity."  But we cannot ignore the Japanese American internment circa 1942, only about 70 years ago. This period saw between 100,000 and 150,000 (Japanese) Americans relocated to “war relocation camps” following the wake of the Pearl Harbor attacks.

While most of America stands in shock and disbelief of the Nazi Germany concentration camps, few even pass on the fact that the US, also, had its own form of concentration camps.  While apparently without the egregious mass murders and other acts of cruelty, the US still did, in fact, indefinitely confined our own citizens based on their nationality.  And this was on our own soil. Again, you asked the average citizen of the US today if they would ever believe that the US would imprison 150,000 individuals to a war relocation camp without trial or due process of law and most which say, unequivocally, “No.” However, it happened. And could happen again.

Then, not more than 10 years later we see the rise and fall of Senator Joseph McCarthy. Again, most of our understandings about these periods of time are superficial. But the McCarthy trials resulted in over 500 witnesses being called to testify against accusations of communism and “anti-American” activities. Many were threatened with prosecution for contempt and countless individuals lost their jobs and their families suffered.

Many believe that if it were not for McCarthy's unfavorable appearance on nationally televised hearings against the Army that there is no saying what levels this prosecution would have risen.

We cannot ignore history. We cannot ignore that we have made egregious mistakes every single time that we have taken steps to abridge constitutional protections in times of fear and panic.  More importantly, we can see, at each and every stage of these periods, they were fueled by beliefs that the level of danger was so great that these steps were necessary. It is only in hindsight and sometimes hundreds of years later that we see the horrors of these actions.

Let us never forget the poem by pastor Martin Niemoller about the inactivity of German following the Nazi rise to power:

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.

Then they came for me 
and there was no one left to speak out for me.

We need to speak out.