Privacy Bills in the House, a First Look: Jared Wright for Habeas Corpus, Due Process, and the Constitution

by Eileen | 8:18 am, January 23, 2013 | Comments Off

…and Mom, baseball, and apple pie, while we’re at it.

WHAT: HB 13-1045, banning any agency or employee of the Colorado state government from complying with the Indefinite Detention clause of the NDAA of 2012

WHO: Rep. Jared Wright (R-54) and precisely no co-sponsors

WHY: Because Section 1021 of the NDAA is precisely the sort of thing that is robbing us, as a nation, of our very last shred of moral authority

Right off the bat, I’m going to call this one as perhaps not dead but definitely flailing in the water.  Several other states and municipal governments have introduced, and even passed, legislation banning local cooperation with 1021.  But will Colorado?  HB 1045 has been assigned to State, Veterans, and Military Affairs, where leadership sends bills to die.  Yeah, it is a military-ish bill, but Rep. Wright hasn’t gotten any co-sponsors.  Colorado’s Congressional Republicans voted against stripping 1021 out of the Congressional bill 3-1, which leads me to think word has come down from on-high that no state level Republican with Potomac aspirations is to act otherwise.  Democrats only champion civil liberties and rule of law when it means they get to criticize the GOP.  Currently, speaking out against the appalling power granted in 1021 would mean taking a stand against Barack “I’ll Close Gitmo” Obama.  Ain’t happening.

For one thing, President Obama signed the bill but said he’d never use Indefinite Detention of U.S. citizens, himself.  Never mind that this leaves the door wide open for future administrations.  Acting to strike 1021 after the POTUS gave a pinkie-promise is tantamount to calling the man a liar.  The game of politics requires Dems pretend they believe him.

The myriad problems with Indefinite Detention under 1021 have gotten plenty of press.  After prevaricating all year, the Senate, under Dianne Feinstein, finally gave us an amendment:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

That still left Americans abroad out of luck, and left the door open for Congress to grant exceptions, but it was still too much.  Given the opportunity to specify that 1021 did not apply to U.S. Citizens, the Conference Committee, under Carl Levin, declined, instead offering up the gormless promulgation that no provision of NDAA was to be construed to violate Habeas Corpus or any portion of the Constitution.  Given that the Supreme Court already settled that very question, we all got suckered into paying for the monkeys to re-state the obvious as if they came up with it in the first place.

For the love of god, have you any idea how badly off we are when Dianne Feinstein passes for a champion of civil liberties?

More than that, by refusing to take a stand one way or the other, the Congress punted to the courts on the matter of indefinitely detaining Americans.  The Bush administration did hold Americans as military prisoners, but that’s not the same as establishing precedent. When they had to rule, the courts gave insanely narrow opinions and went back to hoping the mess stayed in Congress’ lap.

*sigh* In this day and age, separation of powers has been reinterpreted to mean an endless game of passing the buck.

No one wants to openly favor giving Americans the Abu Ghraib treatment, but most politicians will allow anything to happen to other people rather than risk being the guy who put civil liberties over security in the event of another terrorist attack.  Right now, if there is a situation where 1021 would apply, it’s in the hands of the Judiciary.  Their job is to find a way to make it a Congressional problem again and to do it before the hypothetical becomes a reality.

The state’s having no direct say in this hideous clusterfuck, all they can do is demonstrate disdain.  That’s fine.  I think the entire Federal government needs to feel the disdain of the governed far more strongly than is the current case.  Passing a bill that says a state will not be party to enforcing 1021 sends a message to all three branches, and that message is,  “Screw you all.  We’re not your bagman.”

It would likely remain a symbolic act as the Federal government wouldn’t necessarily need to rely on the states.  They have entire agencies where the primary qualification for a job is being comfortable with unConstitutional actions.  Now, I’ll tell you what is an interesting question.  If Federal forces attempted to take custody of an American under 1021, assuming the state knew about it and could get to the citizen first, would a state simply refuse to help or would it actively protect that citizen from becoming a military prisoner of his own government?

Realistically, I see the states buckling if push comes to shove.  But I am pleased to see one member of the state House is willing to put his name on this bill, all the same.

PPC’s recommendation?  Watch out for men in black.

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