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NDAA Unlimited Arrest and Detention


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The recently passed National Defense Authorization Act has that onerous section in it whereby citizens can be arrested without a warrant and held indefinitely without trial. Just the idea of that is so counter to the Constitution on so many levels, one wonders how it passed the treason sniff test.

 

So here's the question for those who may someday be asked / ordered to carry out this heinous act: would you?

Or would you follow your oath to uphold the Constitution and refuse?

 

I ran across this ... http://oathkeepers.org/oath/2012/01/07/ohio-peace-officer-drafts-ndaa-letter-for-police-and-sheriffs/ ... by one group of officers who have already taken a stand.

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I have read that this bill is not as bad as it sounds. However assuming it does allow the government to start rounding up its citizens I expect most LEO's will obey the orders of their superiors. It is tough to say no when you have a family to feed and bills to pay.

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We can all say that it is Unconstitutional but until the SCOTUS shoots it down, it is a lawful act and therefore, you are required to follow orders.

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I have read that this bill is not as bad as it sounds. However assuming it does allow the government to start rounding up its citizens I expect most LEO's will obey the orders of their superiors. It is tough to say no when you have a family to feed and bills to pay.

 

Right - just like the Gestapo....:rolleyes:

 

GG ~ :FlagAm:

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There is a built in conflict. One section says it doesn't apply to US citizens in the US, another says it does.

 

As for We can all say that it is Unconstitutional but until the SCOTUS shoots it down, it is a lawful act and therefore, you are required to follow orders. isn't that "legal orders?" Granted, it may be interesting for an E-3 to say, "Sir, I won't carry out that illegal order."

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There is a built in conflict. One section says it doesn't apply to US citizens in the US, another says it does.

 

As for We can all say that it is Unconstitutional but until the SCOTUS shoots it down, it is a lawful act and therefore, you are required to follow orders. isn't that "legal orders?" Granted, it may be interesting for an E-3 to say, "Sir, I won't carry out that illegal order."

 

I don't know how it is in the world of civilian law enforcement, but under Military Law all orders carry a presumption of legality. A individual challenges that legality at their peril.

 

Some orders are clearly unlawful (summary execution of POWs, theft of government property, theft of civilian property, etc.). If an order skirts illegality the individual can be put in a difficult position.

 

The inclusion of this power in this bill is very unwise and reflects politics more than law. It's somebody showing they want to be tough on terrorism. Sadly, Ron White was right; you can't fix stupid.

 

SQQ

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To tell you the truth I have not read the law in its entirety so I can't make an informed call on it yet.

Now that the "G" word has been used maybe this will turn into a cop bashing thread. :lol:

 

There is a lot more I could say, but I see this as turning into a political discussion rather than one on 2A rights.

 

And I don't do political discussions.

 

Here, anyway.

;)

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I don't know how it is in the world of civilian law enforcement, but under Military Law all orders carry a presumption of legality. A individual challenges that legality at their peril.

 

Some orders are clearly unlawful (summary execution of POWs, theft of government property, theft of civilian property, etc.). If an order skirts illegality the individual can be put in a difficult position.

 

The inclusion of this power in this bill is very unwise and reflects politics more than law. It's somebody showing they want to be tough on terrorism. Sadly, Ron White was right; you can't fix stupid.

 

SQQ

 

Yeah, just like the internment of the Japanese during WWII :angry: Hate to see history repeat itself in this case....

 

GG ~ :FlagAm:

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The "held indefinitely without trial" clause is clearly a violation of the 6th Amendment right to a speedy trial.

SCOTUS has already ruled on the application of the 6th Amendment by defining a set of tests.

I would think that a US citizen arrested in the USA would be protected by the 6th Amendment.

 

 

From Wikipedia article on "Speedy Trial Clause".

In Barker v. Wingo (1972),[2] the Supreme Court developed a four-part test that considers the length of the delay, the reasons for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant. A violation of the Speedy Trial Clause is cause for dismissal with prejudice of a criminal case.

 

 

Some additional questions I have.

But does the 6th Amendment apply to a person arrested in Afghanistan by US forces?

And does it apply to a US Citizen arrested as a Taliban in Afghanistan by US forces?

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To tell you the truth I have not read the law in its entirety so I can't make an informed call on it yet.

Now that the "G" word has been used maybe this will turn into a cop bashing thread. :lol:

 

There is a lot more I could say, but I see this as turning into a political discussion rather than one on 2A rights.

 

And I don't do political discussions.

 

Here, anyway.

;)

 

 

Let's see if we can keep it factual and non-political.

 

First, here's a link to the Act:

 

http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf

 

Sec. 1021 and 1022 are the sections in question.

 

As I read it, it is unclear whether these powers extend to arrests of US citizens on US soil; that appears to depend on what the "existing law" alreasy is (and the sections claim not to affect that existing law).

 

We recently had a US citizen arrested in this area, and tried for federal offenses related to alleged support of Al Qaeda (he translated and published some of their publications, on line}, after a bungled trip to Yemen in an attempt to find a training camp that would help him become a fighter against US troops in Iraq. He was convicted of conspiracy, and also of lying to Federal authorities who questioned him. He was arrrested by the FBI, held in Federal detention, and tried in the U.S. District Court.

 

There was never a mention made of military arrest, military detention, detention for an unspecified time, movement to a foreign jurisdiction, or military trial.

 

As in all such matters, the devil is in the details. When faced with a grave national threat, we often "over-react", assuming that it is safer for the country as a whole to take stronger protective measures, even at the risk of trampling on the individual rights of a few. Even the House and the Senate appear to differ regarding the meaning of the subject sections; the President has stated that his administration would never apply unlimited detention or military detention to US citizens arrested on US soil; but what about the next administration? And how binding is a signing statement, when the Act does not contain precisely that language? Unless it's clearly written and legally binding, signing statements and pronouncements by legislators are meaningless. And loose language opens a huge door that is exploitable by people who crave power and would do anything to get more.

 

My sense is that these sections have been written cleverly, to preserve "options" depending upon future situations that may arise, not to provide clear and binding limitations. I don't know who is responsible, but from the position of a free man, I don't like it. Al Queda or no Al Queda.

 

LL

 

 

 

)

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Guest Tennessee Stud, SASS# 43634 Life

My greatest fear... is that I am gonna be the test-case... for this piece of dictator-imposed-garbage legislation.

 

Them ba$tards... we need to fire any sumbich who voted for it...

 

ts

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People, we are putting the cart before the horse here, fueled by emotion and not rule of law nor Legal Interpretation of said Law.

 

We all have opinions as to what is legal and what isn't but our opinions do not count. The Courts decide legality and Appellate Courts ruling in one U.S. District do not have their opinions stand as Law in others until the SCOTUS makes a ruling. Then it becomes a Law for the nation or is struck down as a Nation.

 

Until then, I stand by my original statement based on dealing with both Criminal Law as a Lawdog for 28 years and the UCMJ for 28 years also. Unless you can stand there with case Law in your hand backing you, disobeying an order is treacherous for not only your career but also your freedom. Incarceration is eminent in Military Court's Martial.

 

Besides, this "LAW" is destined to be tested by those in much higher positions than the Beat Cop of MP. The arrest is made and the prisoner is processed. After that, it is in the hands of the Legal Weenies in JAG to deal with... And The Courts to decide if detention is warranted and legal until a trial is set.

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First they came for the communists, and I did not speak out--

because I was not a communist;

 

Then they came for the socialists, and I did not speak out--

because I was not a socialist;

 

Then they came for the trade unionists, and I did not speak out--

because I was not a trade unionist;

 

Then they came for the Jews, and I did not speak out--

because I was not a Jew;

 

Then they came for me--

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

 

Martin Niemoeller, Protestant Minister and concentration camp survivor.

 

Using the Nuremberg Defense of "I was just following orders" won't wash anymore.

 

Military discipline is important, but there also exists a moral imperative to do the right thing.

And rounding up your fellow citizens based on suspicion is not the right thing.

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BTW,

 

Does anyone know what became of this 'National Police Force' that was spoken of by a certain successful Presidential candidate back in 2008, or the funding for said force that was allegedly put forth in the National Health Care Act of 2010? Just curious.... :ph34r:

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We can all say that it is Unconstitutional but until the SCOTUS shoots it down, it is a lawful act and therefore, you are required to follow orders.

 

That rationalization didn't fly at Nuremburg. I use officer discretion all the time. As all LEOs must.

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That rationalization didn't fly at Nuremburg. I use officer discretion all the time. As all LEOs must.

 

 

Discretion is one thing. Refusing to follow the Law is another. Examples are refusing to arrest a guy for murder because you know the guy and he's a good guy so you will use discretion and let him off with a warning...

 

Very extreme example but no more extreme than the paranoia feuled by this post. Reality check! No LEO is ever going to be put into any position of "Unlimited Detentiuon of a person. This is for the Courts to do and simply put, the Judges, if they deem it unconstitutional, will not grant the unlimited detention of a person brought before them.

 

I would love to see just one example of a LEO with the power to actually detain somebody without being required to allow to bond or to have the arrestee brought before a Judge.

 

Anybody that has this power is in the "POLITICIAN" level such as Attorney General... Not even the Assistants have the authority to do so without approval from higher ups...

 

And the Neuremburg Trials were not meant for anything other than punishment to the entire hierarchy of the losers of the War.... Same thing happened after the War of Northern Aggression only they called it "Reconstruction".

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Godwin's Law in 5 posts.

 

Wow!!

 

An interesting theorem.

 

On a related note is the Milgram Experiment regarding authority figures and personal morality.

It's the one where he wanted to see how far people would go in doing something hurtful to others, even if it could prove fatal.

 

It's disturbing to find that 65% to 80% of people will blindly follow orders even when they know their actions are wrong.

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Godwin's Law in 5 posts.

 

Wow!!

 

 

Thanks, J-Bar...I had to look that one up...neat short-hand explanation of emotional bomb-throwing in a debate.

 

Back to some more FACTS:

 

We got diverted here talking about LEOs and whether THEY would follow such orders to arrest; that is NOT the issue under this bill, as I read it. This is a MILITARY authorization act, and refers only to the ARMED FORCES.

 

So, the problem under the Act is that a detained individual does NOT end up in front of a judge, in the worst-case scenario; he gets detained, for no set time, at the whim of the military; or, he gets shipped to another country, at the whim of the military; or, he gets sent to Guantanamo or a similar facility; or he gets tried by a military tribunal, with much more limited protection of his rights - all without due process.

 

Now, for some balance. You need to decide if you have some faith in the military. Can you trust them to be fair and responsible in the way in which they apply this process? Can you trust them, overall, to not use this power abusively, or against citizens who are not involved in terrorism, or not against any who are not a direct, active threat to our country? For one, I don't think there is a great risk of abuse; but my concern is that the POSSIBILITY for abuse exists; and power corrupts; and absolute power corrupts absolutely. And that's why we have a Constitution, which does not contain an exception for times of war or times of terror. (President Lincoln's suspension of the right of Habeus Corpus notwithstanding).

 

So, do I think that the Army will run amok, arresting poltical opponents of an Administration, and holding them without trial? No - not realistically. But that's an easy scenario. Take a harder one: an American Muslim writes anti-US literature, and circulates it on the Internet; it is downloaded by individuals in Middle Eastern countries, and a copy is found in a search of a suspected bomber in Yemen. Has the American supported terorism? Is he part of a conspiracy? Will he be arrested and held without trial until the military decides that he is not a threat? Or harder yet: an American with no religious affiliation and no overt political beliefs writes an editorial for a local newspaper, criticizing the government for starting another war in a Middle Eastern country; foreign press agencies, impressed with his analysis, reprint it across the world, and it is used as a rallying cry by citizens in the affected country; militia groups use quotes from the editorial as recruiting slogans for guerrilla fighters to oppose the invading US troops. Will the author be arrested? Will his Constitutional rights be over-ridden by the Act?

 

The guarantee of our rights under the Constitution, and the limitations on the power of our government and our military, is what seperates us from most of the other countries in the world. I'm not making dire predictions; I just do not agree with any Congress blindly or complicitly passing legislation infringing on those rights (no matter how scared they are of looking like they are "soft on terrorists". Passing a health care bill without a clear understanding of what it contains is one thing; passing a bill that arguably impacts our most basic freedoms, and fails to clearly define the circumstances under which US citizens can be indefinately detained by the military without a public civilian trial, is much worse.

 

LL

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An interesting theorem.

 

On a related note is the Milgram Experiment regarding authority figures and personal morality.

It's the one where he wanted to see how far people would go in doing something hurtful to others, even if it could prove fatal.

 

It's disturbing to find that 65% to 80% of people will blindly follow orders even when they know their actions are wrong.

 

Seems so...:(

 

GG ~ :FlagAm:

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So, do I think that the Army will run amok, arresting poltical opponents of an Administration, and holding them without trial? No - not realistically.

 

Nor do I, but good God...what about the Marines?? :unsure::lol: :lol:

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Nor do I, but good God...what about the Marines?? :unsure::lol: :lol:

 

 

We make amok look good............

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We make amok look good............

 

Oorah! ;)

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A partially greased decline in the road under less than desirable circumstances is still a slippery slope without clarity. :FlagAm:

 

 

Officer material.....

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Officer material.....

 

 

No need in gettin' nasty there, Sarge...

 

ts

 

 

At least I didn't say General Officer material...

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A partially greased decline in the road under less than desirable circumstances is still a slippery slope without clarity. :FlagAm:

Chortle :D

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