Stop the NDAA – Destroys Due Process


About the author: David is executive director and founder of CEOs for Liberty, a private membership-only group for CEOs, business owners, and executives with a mission to enhance and protect American business exceptionalism. David founded CFL in 2011 given his concer ... [read 's FULL BIO]

The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall “be deprived of life, liberty, or property, without due process of law.”

A free people are treated as innocent until proven guilty. This has been a hallmark of American law since our founding. There is “due process” and a right to a “speedy trial” to ensure legitimate evidence is presented to an impartial judge and jury before one is arrested and held for any length of time.

This process is due each and every citizen of America as their individual liberty is granted by the Creator, not the State.

The State, of America, is only the guardian and protector of OUR liberties granted by the Creator, via the U.S. Constitution. The State, therefore, is not to place the interests of any political party, person, company or interest, above the interest of any one single citizen. The State is structured to protect us, not the “powers that be”. Hence, our designed-in “checks and balances” and specifically the balance of the law.

And, most important, this due process is key to holding our Constitutional Republic together. Without it, America is simply like any other totalitarian State in history or present.

What specifically is due process? Due process of law is a “fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious.

The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.

The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall ‘be deprived of life, liberty, or property, without due process of law.’ This amendment restricts the powers of the federal government and applies only to actions by it.

The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares, ‘[N]or shall any State deprive any person of life, liberty, or property, without due process of law’. This clause limits the powers of the states, rather than those of the federal government.” (1)

The National Defense Authorization Act of 2012, in which military appropriations are made for the year, contained troubling Sections, Section 1021 in particular, which, at a high-level, allows the POTUS to arrest anyone he or she chooses, declare them an enemy of the State, and indefinitely detain them without sufficient evidence presented to a judge preceding arrest, or a speedy trial.

Clearly, with responsible, integrous use, one could argue this is important to be able to hold dangerous “terrorists” at critical times.

Yet, since America and American Liberty is defined by the the innocence of the individual until guilt is proven, the individual is as important as the State before the courts. In other words, the State must build a case, not simply arrest and detain due to suspicion or whim. This value for all citizens, is of massively greater value than prevention of any one crime — as it prevents the greatest of possible crimes, and that is the tyranny of the State. Thus, our legal system is designed to ensure no tyrant or criminal court could systematically remove its political or ideological opponents without anyone’s knowledge. This is exactly what the POTUS is able to do… TODAY!

Regardless what one may perceive to be the potential advantages of arresting an American citizen to thwart a crime, unless one can present evidence to a judge showing complicity in a crime, or a planned crime, or the State message — “act of terror”, that person must be treated with all due respect of any American citizen. It is the position of their citizenship that is of value, even if their person and actions are questionable.

Further, as we’ve discussed many times in the last few years, no amount of security promised can trump the overall value of liberty to all American citizens. And as Benjamin Franklin aptly stated, and we’ve quoted numerous times, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”(2)

With this in mind, it is important to note that many have been fighting to remove Section 1021 from the NDAA. Many U.S. States have been erecting their own laws to defend against this encroachment of the Federal government. One such fight is being waged by Attorney Orly Taitz. Here is her latest update on her case:

“Our attorneys asked the Supreme Court to consider lifting the ‘stay’ on our injunction against Section 1021 and indefinite detention. As you’ll recall, we won our lawsuit last September and were granted a worldwide injunction against this provision – ensuring people could not be indefinitely detained under the sweeping and unchecked scope of the NDAA.

Despite having issued a signing statement in January of 2012 claiming he would not use these powers against American citizens, Obama immediately appealed Judge Forrest’s ruling and our win, then went further and asked her to grant a stay on the injunction, essentially ‘lifting’ that injunction. She refused.

Next, the DOJ attorneys went to the second circuit court and asked them to lift the stay as well, claiming ‘irreparable harm’ would be incurred by the US if the government did not have these unchecked powers. The second circuit court judges granted their request and put a stay on our injunction.

We applied to both Justice Ginsberg (who said no) and Justice Scalia (who said yes) to convene a conference of the entire Supreme Court to consider lifting that stay and restoring our injunction. They told us yesterday that they will not lift the stay – indefinite detention under the NDAA stands.

Now, it is up to us to convince the media in time to cover the TRUTH about the AUMF and the NDAA and what the United States government has been doing, and why they needed to conflate these two laws, and why they think they are allowed to have unchecked powers to detain anyone, anywhere based on suspicion alone.”

Please, check out Ms. Taitz, Esq., web site and information, as well as, write to your elected representatives to fight this most dangerous of encroachments upon our liberties.

We must fight and win this battle and hold our Supreme Court accountable to the People.* If our Courts are bought and paid for, as it seems every other supposed “check” in the American system of checks and balances appears to be today, we are already in a totalitarian oligarchy, we just haven’t swallowed that truth yet.

Fight Tyranny. Save Liberty. Uphold Due Process.

*At times this coalition to stop the NDAA may draw together strange bedfellows. Don’t focus so much on who may be supporting the removal of Section 1021 from the NDAA, as the fact that we are doing that which needs to be done. Often “liberal” leftists, or those who believe they are, finally start to see the light after the Statists they’ve supported start to show their true colors. As such, those who love American liberty, first and foremost, come from all walks of life. This is as it should be as our volition to make good decisions, to be productive free citizens, is up to each and every one of us, not the State. It is important to understand this nuance of liberty if one truly wants to support America as She was ingeniously designed by our founders.

(C) David M Chaney 2013 “Thoughts on Liberty”

(1) http://legal-dictionary.thefreedictionary.com/Due+Process+of+Law

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  • This is The American People country, NOT the governments . We The People own this country. We have to make it very clear. No part of this government , will take our constitution away, brake it into small pieces , or disrtoy it . We The People have to keep it whole.

  • carlcasino

    I have been witness to this insanity for most of my 75 years. A little chip here, a litle chip there and all of a sudden we have full blown communism. Our non-educational system is our problem and I don’t see any cure on the horizon.

  • marineh2ominer

    Until Obamass ENTIRE NDAA and the PATRIOT act are off the books , the United States constitution has the authority of toilet paper . When are our LEADERS going to do something about it .

    • LadyPatriot

      At this time, our leaders are reluctant to do anything because our country is considered weak and fragile by other countries. To do anything radical might make it appear our country is on the verge of collapse and could be an invitation for attempted enemy takeover. I believe our leaders are scared sh__less! I want to thank all those a$$clowns who voted for the annointed one. THEY are the ones who put us in this precarious situation.

  • coastx

    NDAA= Inquisition= Repatriation. No militia. No fight. And EVERYONE’S got an opinion… AND a Big Mac sandwich.

  • manuel a

    anybody who has been arrested in jail prison ect
    know that its been your guilty till found innocent not the other way around as they want you to belive