Belligerence

On December 31st 2011, US President Barack Obama signed into law the National Defense Authorization Act of 2012. The Act was passed in the House of Representatives on May 26, 2011 by a vote of 322 to 96. The Act was passed in the Senate on December 15, 2011 by a vote of 86 to 13. Below is an excerpt from the Act, the wording of which makes it legal to incarcerate United States citizens without recourse to any form of judicial process. Essentially these words say that if the government deems any person to have committed a “belligerent act” that person can be detained indefinitely without trial.

What is a “Belligerent Act”?

Can the US government now proclaim that the constitutionally protected act of protest against the government is a “belligerent act” and legally lock up those who participate in such a protest?

For the purposes of defining what a “belligerent act” is, with respect to a US citizen, how does the government differentiate between an act of war against the United States vs. a lawful protest against the government? Prior to this Act, such a distinction would have to be decided in a court of law by a jury of a citizen’s peers. With the signing of the NDAA, the government is claiming the right to decide this unilaterally, without any judicial proceedings and no legal representation afforded to the accused.

Does that sound like a government of the people, by the people, and for the people? Or does that sound like a government that is laying the groundwork for a repression of public protest?

Rule of Law

Our history books teach us (for now) that the United States of America was founded as an act of rebellion against the tyranny of dictatorship. In other words, the United States was founded by commission of a Great Belligerent Act against the ruling government of the day. From the second paragraph of the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” [Source]

The primary founding principle of the United States is that of the Rule of Law. Rule of Law does not mean “rule” as in the rules of a game. Rule of Law means that, rather than being ruled by the arbitrary dictates of a powerful man, we are ruled, each of us, by a common set of laws that are the same for everyone, everywhere, all the time. These laws are agreed upon through a public democratic process and they are written down for everyone to see. The Constitution of the United States is the basis of all US law and it lays out the essential precepts of the Rule of Law.

Under the Rule of Law and under the Constitution, citizens of the United States are presumed innocent until deemed guilty of a crime by a jury of their peers. Under the Rule of Law and under the Constitution, no citizen of the United States can be incarcerated without recourse to legal counsel and the justice system in a timely manner. These principles are what separate the Rule of Law from dictatorship. It is precisely the inability of powerful men to impose their will arbitrarily on the less powerful that makes Rule of Law mean RULE of LAW.

On the day of the signing of the Act, Anthony D. Romero, ACLU executive director said:

“President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law. The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.” [Source]

Constitutionally Speaking

The provisions of the NDAA highlighted above are blatantly unconstitutional. The Fourth Amendment to the Constitution prohibits warrantless seizures of the person or property of US citizens. The Fifth Amendment prohibits the depriving of US citizens of “life, liberty, or property without due process of law.” The Sixth Amendment includes the right to a “speedy and public trial by an impartial jury.” [Source]

These are the most basic, most essential protections of human liberty upon which the United States was founded. It would be no exaggeration to claim that the primary purpose of those who founded the United States was the creation of a nation where exactly these protections were guaranteed to all citizens. And with the signing of the NDAA, the present government of the United States has claimed the legal right to kill these constitutional protections.

It Matters

Think it doesn’t really matter and that protesting this act is alarmist and paranoid? It may not matter in practice in this moment, but when principle is compromised in a nation founded on principle, then what is left of that nation?

The point is that this law really makes it possible for a US government, whether this one or a future one, to lock up US citizens who are protesting against, and threatening to replace that government. Even if this law were never used, it radically changes the relationship between the government and the citizens of the United States. Unless and until it is repealed, this Act gives the government legal grounds to use the military and the threat of indefinite military detention without trial to put down any form of protest that it decides is a threat to itself by simply defining the protest as a “belligerent act.”

The authors of this site believe that the National Defense Authorization Act of 2012 is itself a belligerent act committed against the people of the United States by the selfsame government officials who have sworn a solemn oath to serve the citizens and uphold the Constitution.

We protest and demand the repeal of Subtitle D, SEC. 1021 of the National Defense Authorization Act of 2012, along with any other legislation that abrogates the protections of human liberty guaranteed under the Constitution.

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