NDAA and a False State of Fear – The Nature of the Problem and a Remedy

NDAA and a False State of Fear – The Nature of the Problem and a Remedy

We Didn’t Start the Fire – Billy Joel

In an effort to be complete in addressing in short order the concerns raised by many in the public and discussed below, this short press release from the Liberterian Party (national) is provided:

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Press Release

For Immediate Release
Friday, December 2, 2011

Indefinite detention provisions are wrong

WASHINGTON – Libertarian Party Chair Mark Hinkle released the following statement today regarding the indefinite detention provisions of Senate version of the National Defense Authorization Act of 2012.

“The Obama administration has already claimed that the president has the authority to kill Americans overseas, if he believes they are terrorists.

“Now, in the latest National Defense Authorization Act, Congress is trying to give the president power to imprison Americans indefinitely, without charges or respect for habeas corpus, if he claims they are terrorists.

“Democrats and Republicans in the Senate have already joined hands to pass the bill.

“This contempt for our rights is outrageous. Any member of Congress who supports that provision is grossly violating his or her oath to uphold the Constitution.

“If the president thinks you are a terrorist, let him present charges and evidence to a judge. He has no authority to lock you up without any judicial review, just because he and Congress believe he should have unlimited power.

“That is the kind of power held by tyrants in totalitarian regimes. It has no place in the United States.

“The Libertarian Party opposes terrorism. We also believe our government should stop taking actions that provoke terrorism. We want to end military involvement in Iraq, Afghanistan, and many other countries, and we want to repeal the Patriot Act.”

For more information, or to arrange an interview, call LP Executive Director Wes Benedict at             202-333-0008       ext. 222.

The LP is America’s third-largest political party, founded in 1971. The Libertarian Party stands for free markets, civil liberties, and peace. You can find more information on the Libertarian Party at our website.

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UPDATE:  In January 2012, one candidate seeking the nomination to be the Republican contended in the 2012 election spoke clearly against NDAA, SOPA and the Patriot Act.  Here is a short video on those 3 subjects discussed by a currently elected Congressman.

This post is a two-part production.  A second part is entitled:  Corporate Wars Against Unalienable Rights – Balancing the Hysteria for Profit – A Manifesto.

Contents of this Post:

• What is Fear
• What is the Official Position of The Administration on the Signing of the NDAA on December 31, 2011
• What is a Signing Statement?  What is its Legal Effect Upon the Administration?
• What is a Bill of Attainder?
• A Brief Analysis of the Signing Statement and Executive Branch
• Intentions Regarding the NDAA
• What Are Unalienable Rights?
• What is a civil right?  Why should we care?
• What was a person in the context of 1868?
• What is the Effect of an Application of Unalienable Rights to the Application of the NDAA?
• To Whom Are Unalienable Rights Given?

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What is Fear – Why Participate in a State of Fear Frenzy over the NDAA?

Some would argue fear is a distressing negative sensation induced by a perceived threat. It is a basic survival mechanism occurring in response to a specific stimulus, such as pain or the threat of danger. One cannot turn around on the internet without seeing buckets full of fear regarding the NDAA.  It’s ablaze on Twitter, Facebook and many blogs.  This post is not intended to diminish the valid concerns which NDAA poses.  Without over emphasis, these fears are real as is discussed in detail below.

This post is however intended to ally some of the fear with a better understanding of the NDAA in context of the legal effect of President Obama’s Signing Statement regarding the NDAA law and in relation to Supreme Court precedents found in several relevant decisions made during World War II.  These are also discussed below.  Our final desire here is to take the President at his word in the Signing Statement.  History will prove whether that reaction is misguided.

This post is not intended to be racist, sexist or otherwise.  Some of the information provided here you will likely not agree with and actually recoil at in an understandable state of disgust – perhaps resorting to an exasperated claim:  “… that’s not what I was taught.”  This post is not written to make the reader like it or pander to majority views of a history that never occurred.

Walker News Desk is not running for a public office.  Truth, real truth, particularly hidden or intentionally concealed truth is a bitter pill to swallow.  One feels betrayed and understandably so by the education he or she received.  The truth meter in all of us somehow recognizes it when we see or hear it.  We do not like it, but we know it.

One of the prime components of any regime of terror is the use of fear, and particulary fear integrated with ignorance, of the true history to which each of us is an heir.  This post is also intended to address the fears and, where possible, reduce or balance certain fears while leaving on the table valid concerns requiring further study.  Various fears concerning what the NDAA signed on December 31, 2011 may or may not bring to America has been a constant source of social media communications on Twitter, Facebook and many blogs since October when it appeared to the public the Senate and the House were seriously considering it.  Some have said NDAA should never be signed.  Some argued if it is signed, it will plunge America into a corporate, fascist state.   This prediction remains on the table.

What is the Official Position of The Administration on the Signing of the NDAA on December 31, 2011

On December 31, 2011, the President signed the NDAA.  With the signing, he issued a Signing Statement recited verbatim below.  The impact of signing statements in general is now a hotly debated issue among legal scholars.  Numerous article and references can be found here at Georgetown Law Library.

What is a Signing Statement?  What is its Legal Effect Upon the Administration?

SOURCE:  “Q:  What is a Signing Statement?

A:  A “Signing Statement” is a written comment issued by a President at the time of signing legislation.  Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs.  The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional.  Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3).”

“When Presidents sign bills into law, they sometimes issue written statements expressing their views on those bills. These written statements are known as “presidential signing statements.” Presidents often use signing statements to express their intention not to enforce parts of legislation that they consider to be unconstitutional. Since at least the Reagan era, scholars, jurists, and others have debated whether presidential signing statements should be considered as legislative history for purposes of interpreting federal statutes. In a recent example, U.S. Supreme Court Justice Scalia disagreed with his brethren’s disregard of a signing statement related to the Detainee Treatment Act, Pub. L. No. 109-148, §§ 1005-1006, 119 Stat. 2736 (2005).  Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (Scalia dissenting). In March 2009, President Obama issued a memo to the heads of executive departments and agencies in which he opined “In appropriately limited circumstances, [presidential signing statements] represent an exercise of the President’s constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress.”  This guide is intended as a starting point for research about presidential signing statements.  It is not a comprehensive listing of all materials on the subject.  For help finding other types of presidential documents, consult the Library’s Presidential Documents Research Guide or contact the reference desk at(202) 662-9140 .”  CREDIT PROVIDED by Walker News Desk:  The guides below were Written by Georgetown Law Library and are Current as of December 31, 2011.  A secondary source with numerous articles on Signing Statements and their legal effect can be found here at the Library of Congress.

Effect Upon the Executive Department of Government.  “In 1986, then-Attorney General Meese entered into an arrangement with the West Publishing Company to have presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history.  Attorney General Meese explained the purpose of his actions as follows:  “To make sure that the President’s own understanding of what’s in a bill is the same . . . or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.”

The position of Meese and his successors now face is that Signing Statements ostensibly have the effect of law particularly under the precedent established in 1946 under the Roosevelt Administration in United States v. Lovett, 328 U.S. 303 (1946).”  SOURCE.  That decision is discussed further below, and the facts of that case addressed whether a specific Act of Congress, then recently passed during wartime and addressing alleged, non-patriotic government personnel (accused and punished without trial due to their sympathisizing with enemies of the United States)  was a an unconstitutional Bill of Attainder (i.e., Bill of Pains and Penalties); and whether the statute also abrogated Ex Post Facto prohibitions.

Signing Statements Have Been Given Force Under the Rule of Law Starting with FDR in 1946.  “…Signing Statements have been used since the early 19th century by Presidents to comment on the law being signed.  Such comments can include giving the President’s interpretation of the meaning of the law’s language; asserting objections to certain provisions of the law on constitutional grounds; and stating the President’s intent regarding how the President intends to execute, or carry out, the law, including giving guidance to executive branch personnel.   Signing statements have played a role in conflicts between the Executive and Legislative branches in the past.  For example, President Franklin Roosevelt indicated in a signing statement in 1943, during World War II, that he felt Section 304 of the Urgent Deficiency Appropriations Act of 1943 (ch. 218, 57 Stat. 431, 450 (1943)) was unconstitutional, but that he had no choice but to sign the bill “to avoid delaying our conduct of the war.”  He indicated that he would enforce the law, but if the law was attacked in court, the Attorney General was to side with the plaintiff and attack the statute rather than defend it.  When such a lawsuit did occur, Congress had to appoint a special counsel to defend the statute in court.  The matter ultimately went to the Supreme Court, which agreed with President Roosevelt and struck down the provision, citing his signing statement in the Court’s opinion (United States v. Lovett, 328 U.S. 303 (1946).”  SOURCE

In Lovett, the Court recited the following facts as determinative of its holding:

“[T]he Senate Appropriation Committee eliminated § 304, and its action was sustained by the Senate. 89 Cong.Rec. 5024.  After the first conference report, which left the matter still in disagreement, the Senate voted 69 to 0 against the conference report which left § 304 in the bill.  The House, however, insisted on the amendment, and indicated that it would not approve any appropriation bill without § 304. Finally, after the fifth conference report [p313] showed that the House would not yield, the Senate adopted § 304.  When the President signed the bill, he stated:

“The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional. [Emphasis added]

* * *

We hold that § 304 falls precisely within the category of congressional actions which the Constitution barred by providing that “No Bill of Attainder or ex post facto Law shall be passed.” In Cummins v. Missouri, 4 Wall. 277, 323, this Court said,

A bill of attainder is a legislative act which inflicts punishment without a judicial trial.  If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.  [Emphasis added]

The Cummins decision involved a provision of the Missouri Reconstruction Constitution which required persons to take an Oath of Loyalty as a prerequisite to practicing a profession. Cummins, a Catholic Priest, was convicted for teaching and preaching as a minister without taking the oath.  The oath required an applicant to affirm that he had never given aid or comfort to persons engaged in hostility to the United States, and had never “been a member of, or connected with, any order, society, or organization, inimical to the government of the United States . . .”  In an illuminating opinion which gave the historical background of the constitutional prohibition against bills of attainder, this Court invalidated the Missouri constitutional provision both because it constituted a bill of attainder and because it had an ex post facto operation.  On the same day the Cummins case was decided, the Court, in Ex parte Garland, 4 Wall. 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this Court to take a similar oath.  Neither of these cases has ever been overruled.  They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. [p316] Adherence to this principle requires invalidation of § 304. We do adhere to it.

Section 304 was designed to apply to particular individuals. ^[n4] Just as the statute in the two cases mentioned, it “operates as a legislative decree of perpetual exclusion” from a chosen vocation. Ex parte Garland, supra, at 377.  This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U.S.C. 2; acceptance of bribes by members of Congress, 18 U.S.C. 199 202, 203; or by other government officials, 18 U.S.C. 207 and interference with elections by Army and Navy officers, 18 U.S.C. 58.

Section 304, thus, clearly accomplishes the punishment of named individuals without a judicial trial. The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found guilty of disloyalty makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal. ^[n5] No one would think that Congress could have passed a valid law stating that, after investigation, it had found Lovett, Dodd, and Watson “guilty” of the crime of engaging in “subversive activities,” defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result. The effect was to inflict punishment without the safeguards of a judicial trial and [p317] “determined by no previous law or fixed rule.” ^[n6] The Constitution declares that that cannot be done either by a State or by the United States. [Emphasis added]

Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. See Duncan v. Kahanamoku, 327 U.S. 304.  And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed.  An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and, even after conviction, [p318] no cruel and unusual punishment can be inflicted upon him.  See Chambers v. Florida, 309 U.S. 227, 235-238.  When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned.  And so they proscribed bills of attainder.  Section 304 is one.  Much as we regret to declare that an Act of Congress violates the Constitution, we have no alternative here.  [Emphasis added]

Section 304 therefore does not stand as an obstacle to payment of compensation to Lovett, Watson, and Dodd. The judgment in their favor is

Affirmed.

The foregoing portions of the Lovett decision must be considered in the context of the scope of constitutionality of the NDAA.  If enforcement of NDAA by the Department of Justice or a Military Authority constitutes a bill of attainder or a bill of pains and penalties by way of application or promulgation of regulations within the Executive Branch, then it will quite likely face a Constitutionality challenge similar to Lovett upon the settled law relating to Bills of Attainder and Bills of Pains and Penalties set out below.

What is a Bill of Attainder?

U.S. Constitution:  Article I Clause 3.  “No Bill of Attainder or ex post facto Law shall be passed .”

Definition:   A legislative act that singles out an individual or group for punishment without a trial.

The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.”

“The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply – trial by legislature.”  U.S. v. Brown, 381 U.S. 437, 440 (1965). [Emphasis added]

“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted.  A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.”  William H. Rehnquist, The Supreme Court, page 166.

“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils.  They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”  James Madison, Federalist Number 44, 1788.

Supreme Court cases construing the Bill of Attainder (for capital crimes) and Bill of Pains and Penalties for (non-capital crimes) clause include:

• Ex Parte Garland, 4 Wallace 333 (1866).
• Cummings v. Missouri, 4 Wallace 277 (1866).
• U.S. v. Brown, 381 U.S. 437 (1965).
• Nixon v. Administrator of General Services, 433 U.S.425 (1977).
• Selective Service Administration v. Minnesota PIRG, 468 U.S. 841 (1984).

Bills of Attainder:  ”Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.” J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1338. The phrase ”bill of attainder,” as used in this clause and in clause 1 of Sec. 10, applies to bills of pains and penalties as well as to the traditional bills of attainder.   Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); cf. United States v. Brown, 381 U.S. 437, 441 -442, (1965)

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Here is the Signing Statement Issued on December 31, 2011 Regarding the NDAA:

This afternoon, President Obama signed the controversial Defense authorization bill, despite his reservations about provisions related to the treatment of terrorism suspects.  The National Journal reports:  President Obama signed on Saturday the defense authorization bill, formally ending weeks of heated debate in Congress and intense lobbying by the administration to strip controversial provisions requiring the transfer of some terror suspects to military custody.

Abstract:  “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” Obama said in a statement accompanying his signature.

The AP has more from the signing statement: “My administration will not authorize the indefinite military detention without trial of American citizens.   Indeed, I believe that doing so would break with our most important traditions and values as a nation.”

Full text of the signing statement below:

Statement by the President on H.R. 1540:

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed.  In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it.  In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.  Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable.  Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.  [Emphasis added]

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe.  My Administration has consistently opposed such measures.  Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people.  Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note).  This section breaks no new ground and is unnecessary.  The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.  Two critical limitations in section 1021 confirm that it solely codifies established authorities.  First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”  Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”  My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF.  Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.  [Emphasis edded]

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.”  This section is ill-conceived and will do nothing to improve the security of the United States.  The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate.  I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.  While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security.  Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.  As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system.  Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost.  I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention.  I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law.  And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees.  Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose.  I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests.  For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court.  Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation.  Removing that tool from the executive branch does not serve our national security.  Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.  [Emphasis added]

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country.  This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles.  The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.  In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment.  Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference.  Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security.  My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers.  Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia.  Section 1244 further specifies that this report include a detailed description of the classified information to be provided.  While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications.  Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments.  Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning.  My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.  [Emphasis added]

BARACK OBAMA
THE WHITE HOUSE, December 31, 2011.

A Brief Analysis of the Signing Statement and Executive Branch Intentions Regarding the NDAA:

While the Constitution provides Congress with exclusive authority to legislate, that authority is not without its checks and balances – both from the people who have been damaged, or from the Executive Branch of government in the form of signing orders.  Although controversial, as described in the Lovett decision above, Presidential Signing Statements have been given weight by the Supreme Court in cases during a time of war where trial by jury was dispensed with by Congressional enactment.

With concerns many have registered in various Twitter feeds and blog postings in 2011, the 1946  Lovett decision must be weighed and taken into consideration along with the 1946 Duncan decision discussed below.   It should be noted both decisions were decided during war time in states of emergency.  This fact is relevant where the Court in Lovett took into consideration FDR’s statement that a law was unconstitutional in his opinion.   This can easily be viewed as an expression of the Executive Branch’s check and balance over the NDAA, or quoted portions of it, which the Executive believes are unconstitutional.

So in the first instance, the Signing Statement, and particularly the portions in it which are emphasized in bold print above clearly indicate President Obama’s intentions concerning not dispensing with American’s rights to trial by jury in civil courts.  Skeptics may argue the “proof is in the pudding” and while that is accurate, the expression of the Executive Branch of government’s intent regarding implementing regulations and the Justice Department’s execution of the law cannot be lost on the reader.

Secondly, as is addressed in another 1946 case where martial law had been imposed in Hawaii, the Supreme Court in DUNCAN V. KAHANAMOKU, 327 U. S. 304 (1946) upheld an American citizen’s right to a trial by jury over military tribunal trial for a number of very significant reasons based upon the assertion of an abrogation of rights (i.e. trial by jury) when the right of a writ of habeas corpus had been suspended, both secured for protection by the Constitution.  A brief Syllabus of that decision is given below, however it is recommended that the reader of this post carefully review the entire opinion here:  LINK

Thirdly, the Department of Justice has issued an Memorandum dated in 1993 on the subject entitled:  THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS.  That complete Memorandum can be read at the foregoing link and is recommended to the reader who wants more information regarding the legal effect of Signing Statements in the words of the Justice Department.

Syllabus:  DUNCAN V. KAHANAMOKU, 327 U. S. 304 (1946)

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U.S. Supreme Court -Duncan v. Kahanamoku, 327 U.S. 304 (1946)

Argued December 7, 1945 – Decided February 25, 1946

1. Section 67 of the Hawaiian Organic Act, 31 Stat. 141, 153, authorizing the Territorial Governor, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, to suspend the privilege of the writ of habeas corpus or “place the Territory . . . under martial law,” did not give the armed forces, during a period of martial law, power to supplant all civilian laws and to substitute military for judicial trials of civilians not charged with violations of the law of war, in territory of the United States not recently regained from an enemy at a time when the dangers apprehended by the military are not sufficient to cause them to require civilians to evacuate the area and it is not impossible for the civilian government and the courts to function. Pp. 327 U. S. 313, 327 U. S. 324.

(a) Although part of the language of § 67 of the Organic Act is identical with a part of the language of the original Constitution of Hawaii, Congress did not intend to adopt the decision of the Supreme Court of Hawaii in In re Kalanianaole, 10 Hawaii 29, sustaining military trials of civilians in Hawaii without adequate court review during periods of insurrection. P. 327 U. S. 316.

Page 327 U. S. 305

(b) When the Organic Act is read as a whole and in the light of its legislative history, it is clear that Congress intended that civilians in Hawaii should be entitled to constitutional protection, including the guarantee of a fair trial, to the same extent as those who live in any other part of our country. Pp. 327 U. S. 316-319.

(c) Our system of government is the antithesis of total military rule, and its founders are not likely to have contemplated complete military dominance within the limits of a territory made a part of this country and not recently taken from an enemy. P. 327 U. S. 322.

(d) When Congress passed the Organic Act and authorized the establishment of “martial law,” it had in mind, and did not wish to exceed, the boundaries between military and civilian power in which our people have always believed, which responsible military and executive officers had heeded, and which had become part of our political philosophy and institutions. Pp. 319-324.

(e) The phrase “martial law,” as employed in that Act, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals. Pp. 327 U. S. 319-324.

2. Petitioners, two civilians who were unlawfully tried, convicted and imprisoned by military tribunals in Hawaii during a period of martial law when the privilege of the writ of habeas corpus had been suspended, are entitled to their freedom on writs of habeas corpus — at least after the privilege of the writ had been restored. Pp. 312, n 5, 327 U. S. 324.

146 F.2d 576, reversed.

No. 14. Petitioner, a civilian shipfitter employed in the Navy Yard at Honolulu, was arrested by military authorities and tried and sentenced to imprisonment by a military tribunal for assaulting two Marine sentries on duty at the Navy Yard in violation of a military order more than two years after the attack on Pearl Harbor.  At that time, schools, bars, and motion picture theaters had been reopened, and the courts had been authorized to exercise their normal functions, with certain exceptions, one being that only military tribunals were permitted to try criminal prosecutions for violations of military orders.

Page 327 U. S. 306

No. 15. Petitioner, a civilian stockbroker in Honolulu having no connection with the armed forces, was arrested by military police more than eight months after the attack on Pearl Harbor on a charge of embezzling stock belonging to another civilian in violation of the laws of Hawaii.  He was tried, convicted, and sentenced to imprisonment by a military tribunal at a time when the courts were open and functioning to a limited extent “as agents of the Military Governor.”

Both petitioned the district court for writs of habeas corpus, challenging the validity of their trials and convictions by military tribunals under a state of “martial law” which had been declared on the day of the attack on Pearl Harbor.  After separate trials, the district court found that the courts had always been able to function, but for military orders closing them, and that there was no military necessity for the trial of petitioners by military tribunals, rather than by regular courts. It held the trials void and ordered the release of petitioners. T he circuit court of appeals reversed.  146 F.2d 476. This Court granted certiorari. 324 U.S. 833. Reversed, p. 327 U. S. 324.

Page 327 U. S. 307

What Are Unalienable Rights?

It should be emphasized neither Lovett nor Duncan addressed the facts and issues from the perspective a violation of unalienable rights.  This is a significant fact will be discussed briefly below.

Unalienable

a. Not alienable; that cannot be alienated; that may not be transferred; as unalienable rights.

Noted legal dictionaries concur on the meaning of unalienable:

“Things which are not in commerce, as public roads, are in their nature unalienable. Some things are unalienable, in consequence of particular provisions in the law forbidding their sale or transfer, as pensions granted by the government. The natural rights of life and liberty are UNALIENABLE.  Bouviers Law Dictionary 1856 Edition [Emphasis added]

“Unalienable:  incapable of being alienated, that is, sold and transferred.” Black’s Law Dictionary, Sixth Edition, page 1523:  “…You can not surrender, sell or transfer unalienable rights, they are a gift from the creator to the individual and can not under any circumstances be surrendered or taken.  All individual’s have unalienable rights.” [Emphasis added]

By contrast, compare the term “Inalienable as:

Inalienable rights:  Rights which are not capable of being surrendered or transferred without the consent of the one possessing such rights.  Morrison v. State, Mo. App., 252 S.W.2d 97, 101.  [Emphasis added]

So under Morrison, assuming it is correct, a person can surrender, sell or transfer inalienable rights if they consent either actually or constructively.  Inalienable rights are not inherent in man and can be alienated by government. Persons have inalienable rights.  Most state constitutions recognize only inalienable rights.”  [Emphasis added]

Q:  Can Unalienable Rights, by Definition be Modified by Legislative Enactments or Even Amendments to the Constitution?

A:  No.  If unalienable rights could be infringed or modified or limited by legislative enactment or by judicial decision, or by executive order or regulated activity, it is self-evident these Creator endowed rights would not be “unalienable” by definition.

Let’s take an example to emphasize this point.  An excellent set of examples for discussion and argument purposes are the Thirteenth Amendment and Fourteenth Amendments.  Consider the Thirteenth Amendment which states:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

The fact that the Thirteenth Amendment is a post Declaration of Independence (1776) legislative enactment is beyond reasoned argument.  Consider this however.  If the Thirteenth Amendment had been drafted say 180 degrees in the opposite direction as a means of statutorily creating, endorsing or enforcing slavery of any type, regardless of reason, would that enactment by Congress have been a legislative attempt at nullification of one or more of the unalienable rights of life, liberty and pursuit of happiness described in the Declaration of Independence?  The answer is clearly of course it would!

Hypothetically, it would have been an attempted nullification of perhaps all of them.  It would have destroyed each of the unalienable rights specified in the Declaration of Independence and Congress would be no different than King George and all the complaints levied against him at the time … and those complaints were many which caused the creation of a new government.

So what is the point of all of this?  Clearly understanding what unalienable rights are provides a good foundation of comparing them to “civil rights”, a vastly inferior set of rights which are often times intentionally and unintentionally confused with one another.  The first distinction we will look at is who is the giver of the natural, unalienable right and who is the giver of the civil right?

What is a civil right?  Why should we care?

“A ‘civil right’ is considered a right given and protected by law, and a person’s enjoyment thereof is regulated entirely by the law that creates it.” Nickell v. Rosenfield, 82 Cal. App. 369, 373-375 [255 P. 760].

So, unlike the natural, unalienable right to life, liberty and the pursuit of happiness which are Creator endowed, civil rights are created and given by some law created by a government.

The American Heritage Dictionary states:

“civil rights pl.n.
The rights belonging to an individual by virtue of citizenship, especially the fundamental freedoms and privileges guaranteed by the 13th and 14th Amendments to the U.S. Constitution and by subsequent acts of Congress, including civil liberties, due process, equal protection of the laws, and freedom from discrimination.

adj. or civ·il-rights (sĭv’əl-rīts’)

1. Of or relating to such rights or privileges: civil rights legislation.
2. Of or relating to a political movement, especially during the 1950s and 1960s, devoted to securing equal opportunity and treatment for members of minority groups.”

Notice the authors of this dictionary are careful to avoid any reference to natural, unalienable rights which are Creator endowed.  Also there is no reference to the natural, unalienable rights secured, but not created by the Bill of Rights.

One should ask the obvious “blue elephant” question.  If these unalienable rights are specified in the Declaration of Independence (and indeed they are…) and some of them are enumerated in the Bill of Rights (Amendments One through Ten), than why bother to re-assert them, or incorporated them into the Thirteenth and Fourteenth Amendments?   We have them secured in One through Ten, right?

If this metaphorical  blue elephant were asked, he or she would say:  “It’s simple.”  Those unalienable rights in One through Ten are being extended by legislation to a wholly new class of people … extended with a major hidden, and as of 2011, an undisclosed caveat.

Before the Thirteenth and Fourteenth Amendments, these natural, unalienable  rights were not acknowledged as available to the class of society called “persons”.   Although the class of “persons” existed prior to the enactments, extensions of these rights did not.

Q:  Who were these persons?

A:  Indentured slaves both white and of color.

Now focusing on the controlling definitional difference between unalienable and inalienable rights, discussion focus is placed on the term “persons” as being a controlling nuance.

civil rights

–plural noun ( often initial capital letters )
1.  rights to personal liberty established by the 13th and 14th Amendments to the U.S. Constitution and certain Congressional acts, esp. as applied to an individual or a minority group.
2.  the rights to full legal, social, and economic equality extended to blacks.

Sections 1981, 1983, 1985, and 1986 of Title 42 of the United States Code are relevant to the legal effect of the difference between “civil rights” (i.e. created by Statute) and unalienable rights (i.e. Creator endowed).

Tomes of legal treatises have been written on the origin and meaning of term “person”.  For purposes of this brief posting, the use of the term “person” used for the first time in the Fourteenth Amendment is raised for emphasis.

“Section 1.   All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” …

Before the Fourteenth Amendment was passed, Congress passed the Civil Rights Act of 1866.  Formally titled An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their vindication, the Act declared that persons born in the United States and not subject to any foreign power are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude. A similar provision was written a few months later in the proposed Fourteenth Amendment to the United States Constitution. Regarding citizenship by birth in the U.S.: “…all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”  The Civil Rights Act of 1866 also said that any citizen has the same right as a white citizen to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property. Persons who denied these rights to former slaves were guilty of a misdemeanor and upon conviction faced a fine not exceeding $1,000, or imprisonment not exceeding one year, or both.

Here is the actual Civil Rights Act as it existed in 1866 and exists to this day in 2011.

§ 1981. Equal rights under the law

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

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This Civil Rights Act of 1866 was a major part of general federal policy during Reconstruction, and was closely related to the Second Freedmen’s Bureau Act of 1866.  According to Congressman John Bingham, “the seventh and eighth sections of the Freedmen’s Bureau bill enumerate the same rights and all the rights and privileges that are enumerated in the first section of this [the Civil Rights] bill.”  Both Acts can be read at the links to footnotes 1 and 2 below.  Both companion Acts with the Civil Rights Act of 1866 provide the reader with a full context of how important the term persons was and is today to those legislating in Congress.

WIKIPEDIA:  “The Freedmen’s Bureau was created in 1865 during the Lincoln administration, by an act of Congress called the Freedman’s Bureau Bill.^[1]  It was passed on March 3, 1865, in order to aid former slaves through food and housing, oversight, education, health care, and employment contracts with private landowners.

A followup Freedmen’s Bureau Bill^[2] was vetoed by President Andrew Johnson on February 19, 1866,^[3] and Congress failed to override that veto on the following day.^[4]

That failed 1866 Freedmen’s Bureau bill was closely related to the Civil Rights Act of 1866. On March 9, 1866, Congressman John Bingham explained that, “the seventh and eighth sections of the Freedmen’s Bureau bill enumerate the same rights and all the rights and privileges that are enumerated in the first section of this [the Civil Rights] bill.”^[5][6]

On May 29, 1866 the House passed a further Freedmen’s Bureau Bill, and on June 26, 1866 the Senate passed an amended version. On July 3, 1866 both chambers passed a conference committee’s compromise version.^[4][7]

On July 16, 1866 Congress received another presidential veto message,^[8] which Congress overrode later that day.^[9] This congressional action extended the Freedmen’s Bureau, increased antipathy between President Johnson and Radical Republicans in Congress, and was a major factor during Reconstruction.^[4] The Freedmen’s Bureau bill that passed in 1866 provided many additional rights to ex-slaves, including the distribution of land, schools for their children, and military courts to ensure these rights.

In July 1868, Congress voted to again extend the Freedmen’s Bureau,^[10] but a couple weeks later decided to limit its functions to processing claims and supporting education.^[11][12] Four years later, in June 1872, Congress voted to completely shut down the Freedmen’s Bureau by the end of that month.^[13]”

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Footnotes

1. ^ Full text of Freedmen’s Bureau Bill, 13 Stat. 507 (enacted March 3, 1865) from the Online Library of Liberty.
2. ^ Full text of Second Freedmen’s Bureau Bill (December 4, 1865) from the Online Library of Liberty.
3. ^ Johnson, Andrew. Veto Message (February 19, 1866) from the Online Library of Liberty.
4. ^ ^{a b c} Fourteenth Amendment Passage and Ratification: Freedman’s Bureau Act, HarpWeek.
5. ^ Halbrook, Stephen. Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, page 29 (Greenwood Publishing Group 1998).
6. ^ Congressional Globe, 39th Congress, 1st Session, page 1292 (Mar. 9, 1866).
7. ^ Barnes, William. History of the Thirty-ninth Congress of the United States, page 298 (Harper & Brothers 1868), text of the compromise version via eBooksRead.com.
8. ^ Johnson, Andrew. Veto Message (July 16, 1866) from the American Presidency Project.
9. ^ 14 Stat. 173 (July 16, 1866).
10. ^ 15 Stat. 83 (July 6, 1868).
11. ^ 15 Stat. 193 (July 25, 1868).
12. ^ “Records of the Field Offices of the Freedmen’s Branch, Office of the Adjutant General, 1872-1878”, National Archives and Records Administration; Freedmen’s Bureau Preservation Project (2006).
13. ^ 17 Stat. 366 (June 10, 1872).

The Fourteenth Amendment was ratified July 9, 1868.  Regardless of the date, the use of the term person as opposed to the term men found in the Declaration of Independence was, to repeat, intentional.  This is not intended to be a sexist or racist statement.

Irrespective of the intentioned use of the term person, as with the Thirteenth Amendment, can this Fourteenth Amendment be classified as anything other than a legislative enactment?  Can it be read or enforced in any sense so as to divest any man or woman of the unalienable right to life, liberty and the pursuit of happiness?  Again the answer is no it cannot be used to alienate any of these rights.

What was a person in the context of 1868?

(1770, by William Eddis)   “By the eighteenth century indentured servants outnumbered African slaves in the North American colonies.  Unlike the situation endured by slaves, however, the state was an impermanent one for indentured servants.  Initially an attempt to alleviate severe labor shortages in New World settlements, the system of indenture comprised not only willing English women, children, and men, but also convicts, religious separatists, and political prisoners.  Indentured servants labored a set number of years (usually four to seven, though the period for convicts could be considerably longer), during which time they were considered the personal property of their masters. Couples were often prevented from marrying, and women from having children. I f a woman did become pregnant and was unable to work, an equivalent amount of time was added to her period of servitude.  Upon their release, indentured servants were not only given clothing, tools, and, often, even land; they also were usually freed of the stigma of having been a servant at all.  In 1665, half of Virginia’s House of Burgesses was made up of former indentured servants.

PERSONS in a state of servitude are under four distinct denominations:  negroes, who are the entire property of their respective owners:  convicts, who are transported from the mother country for a limited term:  indented servants, who are engaged for five years previous to their leaving England; and free-willers, who are supposed, from their situation, to possess superior advantages.…

Persons convicted of felony, and in consequence transported to this continent, if they are able to pay the expense of passage; are free to pursue their fortune agreeably to their inclinations or abilities.  Few, however, have means to avail themselves of this advantage.  These unhappy beings are, generally, consigned to an agent, who classes them suitably to their real or supposed qualifications; advertises them for sale, and disposes of them, for seven years, to planters, to mechanics, and to such as choose to retain them for domestic service.  Those who survive the term of servitude, seldom establish their residence in this country:  the stamp of infamy is too strong upon them to be easily erased: they either return to Europe, and renew their former practices; or, if they have fortunately imbibed habits of honesty and industry, they remove to a distant situation, where they may hope to remain unknown, and be enabled to pursue with credit every possible method of becoming useful members of society.…

The generality of the inhabitants in this province are very little acquainted with those fallacious pretenses, by which numbers are continually induced to embark for this continent.  On the contrary, they too generally conceive an opinion that the difference is merely nominal between the indented servant and the convicted felon:  nor will they readily believe that people, who had the least experience in life, and whose characters were unexceptionable, would abandon their friends and families, and their ancient connections, for a servile situation, in a remote appendage to the British Empire.  From this persuasion they rather consider the convict as the more profitable servant, his term being for seven, the latter, only for five years; and, I am sorry to observe, that there are but few instances wherein they experience different treatment.  Negroes being a property for life, the death of slaves, in the prime of youth or strength, is a material loss to the proprietor; they are, therefore, almost in every instance, under more comfortable circumstances than the miserable European, over whom the rigid planter exercises an inflexible severity.  They are strained to the utmost to perform their allotted labor; and, from a prepossession in many cases too justly founded, they are supposed to be receiving only the just reward which is due to repeated offenses.

There are doubtless many exceptions to this observation.  Yet, generally speaking, they groan beneath a worse than Egyptian bondage.  By attempting to enlighten the intolerable burden, they often render it more insupportable.  For real or imaginary causes, these frequently attempt to escape, but very few are successful; the country being intersected with rivers, and the utmost vigilance observed in detecting persons under suspicious circumstances, who, when apprehended, are committed to close confinement, advertised, and delivered to their respective masters; the party who detects the vagrant being entitled to a reward.  Other incidental charges arise.  The unhappy culprit is doomed to a fevered chastisement; and a prolongation of servitude is decreed in full proportion to expenses incurred, and supposed inconveniences resulting from a desertion of duty.

The situation of the free-willer is, in almost every instance, more to be lamented than either that of the convict or the indented servant; the deception which is practiced on those of this description being attended with circumstances of greater duplicity and cruelty. Persons under this denomination are received under express conditions that, on their arrival in America, they are to be allowed a stipulated number of days to dispose of themselves to the greatest advantage. They are told, that their services will be eagerly solicited, in proportion to their abilities; that their reward will be adequate to the hazard they encounter by courting fortune in a distant region; and that the parties with whom they engage will readily advance the sum agreed on for their passage; which, being averaged at about nine pounds sterling, they will speedily be enabled to repay, and to enjoy, in a state of liberty, a comparative situation of ease and affluence.

With these pleasing ideas they support with cheerfulness, the hardships to which they are subjected during the voyage; and with the most anxious sensations of delight, approach the land which they consider as the scene of future prosperity. But scarce have they contemplated the diversified objects which naturally attract attention; scarce have they yielded to pleasing reflection, that every danger, every difficulty, is happily surmounted, before their fond hopes are cruelly blasted, and they find themselves involved in all the complicated miseries of a tedious, laborious and unprofitable servitude.

Persons resident in America being accustomed to procure servants for a very trifling consideration, under absolute terms, for a limited period, are not often disposed to hire adventurers, who expect to be gratified in full proportion to their acknowledged qualifications; but, as they support authority with a rigid hand, they little regard the former situation of their unhappy dependants.  This disposition, which is almost universally prevalent, is well known to the parties, who on your side of the Atlantic engage in this iniquitous and cruel commerce.

It is, therefore, an article of agreement with these deluded victims, that if they are not successful in obtaining situations, on their own terms, within a certain number of days after their arrival in the country, they are then to be sold, in order to defray the charges of passage, at the discretion of the master of the vessel, or the agent to whom he is consigned in the province.

SOURCE:   Eddis, William. Letters from America, Historical and Descriptive: Comprising Occurrences from 1769 to 1777 Inclusive. London:  1792.

If the reader recoils at the foregoing historical review by William Eddis, a percipient witness to this state of affair in the late 1700’s and at the time the Declaration of Independence was penned, the reader here is asked to consider the Irish indentured servitude state of affairs in the American colonies in the 1600’s- – 1800’s clearly articulated here:  White Slavery and Indentured Servitude in the Age of Imperialism, Part 1 as well as Michael Hoffman II’s discussion below.  This discussion is being provided to give the reader a thorough understanding of how each person was viewed by government in the 1700’s-1800’s, how they were viewed in the mid-1900’s and how it is quite likely government will view them today through the lens of the NDAA.

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by Michael A. Hoffman II ©Copyright 1999. All Rights Reserved

Michael A. Hoffman II is the author of “They Were White and They Were Slaves:  The Untold History of the Enslavement of Whites in Early America and Industrial Britain“.

“Two years ago (2007), Prime Minister Paul Keating of Australia refused to show “proper respect” to Britain’s Queen Elizabeth II during her state visit.  In response, Terry Dicks, a Conservative member of the British Parliament said, “It’s a country of ex-convicts, so we should not be surprised by the rudeness of their prime minister.”

A slur such as this would be considered unthinkable if it were uttered against any other class or race of people except the descendants of White slavery.  Dicks’ remark is not only offensive, it is ignorant and false.  Most of Australia’s “convicts” were shipped into servitude for such “crimes” as stealing seven yards of lace, cutting trees on an aristocrat’s estate or poaching sheep to feed a starving family.

The arrogant disregard for the holocaust visited upon the poor and working class Whites of Britain by the aristocracy continues in our time because the history of that epoch has been almost completely extirpated from our collective memory.

When White servitude is acknowledged as having existed in America, it is almost always termed as temporary “indentured servitude” or part of the convict trade, which, after the Revolution of 1776, centered on Australia instead of America.  The “convicts” transported to America under the 1723 Waltham Act, perhaps numbered 100,000.

The reader is encourage to read the rest of the Hoffman Article at this LINK.

So in the Context of the NDAA and its Projected Application, What Does this Mean?

“The  only thing new in the world is the history you do not know.”  Harry S. Truman Plain Speaking : An Oral Biography of Harry S Truman (1974) by Merle Miller, p. 26

From the foregoing analysis we know there are Creator endowed, natural, unalienable rights, among which is the right to life, liberty and the pursuit of happiness.  We also know there are a so-called inferior class of civil rights created under the Civil Rights Act of 1866 which pertain to persons.  We know these are not the same.  One is Creator endowed and secured but not created by the Bill of Rights.  The other is statutorily created by laws of Congress.  We also know that the Creator endowed, natural and unalienable rights cannot be taken, changed, limited or modified by any branch of government.  This includes legislation such as the NDAA.

So in the face of a man or woman who asserts their own, subjective definition of what constitutes the unalienable right to life, liberty and the pursuit of happiness, can Congress assert authority of any type within the NDAA purporting to take from them these rights?  The answer is clearly no.

Numerous Twitter feeds, blog posts and even press reports claim the NDAA poses risks to nullification of rights secured in the Bill of Rights not unlike that posed in the Lovett and Duncan decision sets of facts.  These posts warn readers that their right to jury trial will be replaced with a trial by military tribunal, or they will be indefinitely detained without right to counsel, without due process of charges being filed, subjected to cruel and unusual punishment by being unlawfully rendered to a foreign country and worse.  As mentioned at the beginning of this post, these fears may be justified given the terror hysteria that seems to pervade sectors of government.  These fears may be justified in light of the substantial profits some private military contractors may make in administering applications of NDAA in America.

However, this post is about balancing that set of justifiable concerns against the strength of the founding principles of America.  These principles need to be remembered, understood, shared and applied to any discussion of the possible effects of the NDAA on Americans.  The next portion of this post dies just that.

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What is the Effect of an Application of Unalienable Rights to the Application of the NDAA?

Can the Congressional enactment known as the NDAA or the Executive Branch’s execution of it be use to abridge, modify, limit or alter American’s Creator endowed, natural, unalienable rights?  The short answer is it cannot under any circumstances.

The longer answer is this is not a question which lends itself to objective analysis or opinion because natural, unalienable rights are endowed by the Creator and cannot be limited by a supposed transference of them to a legislative, executive or judicial body or officer.  Neither can there be a transfer of the task or the right to interpret and announce what unalienable rights to life, liberty and the pursuit of happiness either are or are not.  The right is reserved on a subjective basis.  It is in Thomas Jefferson’s own words self-evident that neither Congress, the Executive of Judicial branches have the right to determine what is meant to any man or woman by the phrase:  “… certain unalienable rights, that among these is the right of life, liberty and the pursuit of happiness”.  By stronger reason, this is self-evident where the phrase “among these” is understood to signify a non-exclusive list of unalienable rights and not a list limited to life, liberty and the pursuit of happiness.

Most case law on this subject is understood by legal scholars to be sui generis, particularly when relating to what are or are not Creator endowed, natural, unalienable rights.  The reason for a sui generis approach to this is due to the fact that the phrase and what it means is actually subjective to the man or woman being thinking upon and declaring what they are.  Case law supports this understanding that no legislative enactments whether amendment, statute, rules or regulations may alter, take, limit or compromise the unalienable rights of a man or woman provided they are asserted.  Although there are numerous case law references, several should suffice for this posting:

“… Men are endowed by their Creator with certain unalienable rights,-’life, liberty, and the pursuit of happiness;’ and to ‘secure,’ not grant or create, these rights, governments are instituted.  That property which a man has honestly acquired he retains full control of, subject to these limitations:  First, that he shall not use it to his neighbor’s injury, and that does not mean that he must use it for his neighbor’s benefit; second, that if the devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.  BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892) [Emphasis added]

“…The dissemination of the individual’s opinions on matters of public interest is for us, in the historic words of the Declaration of Independence, an “unalienable right” that “governments are instituted among men to secure.”  History shows us that the Founders were not always convinced that unlimited discussion of public issues would be “for the benefit of all of us” but that they firmly adhered to the proposition that the “true liberty of the press” permitted “every man to publish his opinion…” Respublica v. Oswald, 1 Dall. 319, 325 (Pa.). CURTIS PUBLISHING CO. v. BUTTS, 388 U.S. 130 (1967) [Emphasis added]

“… Among these unalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment.  The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions.  The right to pursue them, without let or hinderance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.  It has been well said that ‘THE PROPERTY WHICH EVERY MAN HAS IN HIS OWN LABOR, AS IT IS THE ORIGINAL FOUNDATION OF ALL OTHER PROPERTY, SO IT IS THE MOST SACRED AND INVIOLABLE. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property.  It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. . . The right to follow any of the common occupations of life is an unalienable right, it was formulated as such under the phrase ‘pursuit of happiness’ in the declaration of independence, which commenced with the fundamental proposition that ‘all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.’ This right is a large ingredient in the civil liberty of the citizen. To deny it to all but a few favored individuals, by investing the latter with a monopoly, is to invade one of the fundamental privileges of the citizen, contrary not only to common right, but, as I think, to the express words of the constitution. It is what no legislature has a right to do; and no contract to that end can be binding on subsequent legislatures. . . BUTCHERS’ UNION CO. v. CRESCENT CITY CO., 111 U.S. 746 (1884) [Emphasis added]

The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable.  It is a right not ex gratia from the legislature, but ex debito from the constitution. . . Where is the security, where the inviolability of property, if the legislature, by a private act, affecting particular persons ONLY, can take land from one citizen, who acquired it legally, and vest it in another? VANHORNE’S LESSEE v. DORRANCE, 2 U.S. 304 (1795) [Emphasis added]

To Whom Are Unalienable Rights Given by the Creator?

As has been previously discussed, the Declaration of Independence declares all men are endowed by their Creator with these natural, unalienable rights.  Although through the course of time from the 1600’s through the present day, some may argue natural, unalienable rights only applied to a particular class of people via supposed legislation of Congress, it cannot be said that this is a reflection of natural law as it was understood by Thomas Jefferson, John Locke or Vattel in his Law of Nations who penned in 1792:

“The study of this science presupposes an acquaintance with the ordinary law of nature, of which human individuals are the objects. Nevertheless, for the sake of those who have not systematically studied that law, it will not be amiss to give in this place a general idea of it.  The natural law is the science of the laws of nature, of those laws which nature imposes on mankind, or to which they are subject by the very circumstance of their being men; a science, whose first principle is this axiom of incontestable truth—“The great end of every being endowed with intellect and sentiment, is happiness.”  It is by the desire alone of that happiness that we can bind a creature possessed of the faculty of thought, and form the ties of that obligation which shall make him submit to any rule. Now, by studying the nature of things, and that of man in particular, we may thence deduce the rules which man must follow in order to attain his great end,—to obtain the most perfect happiness of which he is susceptible. We call those rules the natural laws, or the laws of nature. They are certain, they are sacred, and obligatory on every man possessed of reason, independently of every other consideration than that of his nature, and even though we should suppose him totally ignorant of the existence of a God.

But the sublime consideration of an eternal, necessary, infinite Being, the author of the universe, adds the most lively energy to the law of nature, and carries it to the highest degree of perfection.  That necessary Being necessarily unites in himself all perfection:  he is therefore superlatively good, and displays his goodness by forming creatures susceptible of happiness.  It is then his wish that his creatures should be as happy as is consistent with their nature:  consequently it is his will that they should, in their whole conduct, follow the rules which that same nature lays down for them, as the most certain road to happiness. Thus the will of the creator perfectly coincides with the simple indications of nature:  and those two sources producing the same law, unite in forming the same obligation.

The whole reverts to the first great end of man, which is happiness.  It was to conduct him to that great end that the laws of nature were ordained:  it is from the desire of happiness that his obligation to observe those laws arises.  There is, therefore, no man,—whatever may be his ideas respecting the origin of the universe,—even if he had the misfortune to be an atheist,—who is not bound to obey the laws of nature.  They are necessary to the general happiness of mankind; and whoever should reject them, whoever should openly despise them, would by such conduct alone declare himself an enemy to the human race, and deserve to be treated as such.  Now, one of the first truths which the study of man reveals to us, and which is a necessary consequence of his nature, is, that, in a state of lonely separation from the rest of his species, he cannot attain his great end—happiness:  and the reason is, that he was intended to live in society with his fellow-creatures.  Nature herself, therefore, has established that society, whose great end is the common advantage of all its members:  and the means of attaining that end constitute the rules that each individual is bound to observe in his whole conduct.  Such are the natural laws of human society. Having thus given a general idea of them, which is sufficient for any intelligent reader, and is developed at large in several valuable works, let us return to the particular object of this treatise.”  [[Note added in 1773/1797 editions.]]

Overcoming a Misapplication the Laws of Nature in the Past.

Even though some scholars, politicians and layman have argued that Creator endowed, natural unalienable rights only applied to white males in 1776 or in the 1860’s, our position in this post is that this understanding is flawed and remains contrary to the laws of nature.

• It is self-evident no one wishes to be enslaved at birth or otherwise.
• It is self-evident no one wishes to be involuntarily indentured.
• It is self-evident no one wishes to live in difficult financial circumstances and have their only option to enter into a voluntary indenture relationship, no matter what the pretext.

With regard to the NDAA we now argue that the laws of nature make it self-evident that:

• It is self-evident no one wishes to be enslaved by any form of legislation, nor to have their natural, unalienable rights ignored, revised, or limited in any way in the wake of a State of Fear over terror.
• No American can alienate, waive or give away their Creator endowed, natural, unalienable rights, nor can any other American or human being take those rights from them regardless of the legislative, executive or judicial pretext asserted.

Closing

In closing, this first part of the two part series, the words of John Locke and Thomas Jefferson concerning natural law and its application to the subject matter seem instructional.

In Locke’s Second Treatise he described on the title page of the Two Treatises that it was an essay which was concerned with the origin, extent, and purpose of civil government. The treatise described the conditions under which a government may be established, and explained how a government may be based on a ‘compact’ or social contract.  The treatise discussed the duties and obligations of legislators and of other leaders of government, and described the proper uses and limits of executive and legislative power.  The treatise also described the conditions under which a government may be dissolved by the people of a civil society if the government fails to protect their freedom and security.

Thomas Jefferson Incorporated Locke’s Sentiments in the Declaration of Independence, But He  Stated No Generation Can Bind a Future Generation in a Constitution or Social Compact.

Jefferson look at natural law and asked a question.  By what right can one generation presume to bind a future generation without consent.  To Jefferson it was self-evident no person would agree in advance of birth to be born into condition of poverty, slavery or servitude, particularly when the newborn had no control over the state of affairs in nature when they were born.  Jefferson’s view of unalienable rights, natural rights caused him to state in many documents concurrent with the Declaration of Independence this legal principle: “The earth belongs in usufruct to the living.”

“The earth belongs in usufruct to the living,”Jefferson wrote to Madison in 1789.  He continued:  “[T]he question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water,” even though “it is a question of such consequences as . . . [to] place . . . among the fundamental principles of every government.”  [Emphasis added]

Jefferson’s assertion founded on Locke and Sir William Blackstone’s writings (i.e. Blackstone’s Commentaries).  This legal principle was and still is considered paradigm shifting:

“We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another.”  [Emphasis added]

Again continuing in his letter to Madison (see full text below), Jefferson stated,

“… [e]very constitution . . . and every law” should “naturally expire[] at the end of 19 years.” (Note:  this was rather elaborately calculated by Jefferson, on the basis of life expectancies at the time in 1789.  At that time, a majority of people twenty-one and older would die within nineteen years.  He therefore concluded that was the best measure of a generation’s life span.) If any law “…be enforced longer, it is an act of force, and not of right.”

Source Documentary Evidence of Jefferson’s Statement quoted above.

Lest the reader think that the foregoing comments were unimportant views of Thomas Jefferson, the following quotes are provided. [SOURCE:  Virginia.EDU]

“The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself.  Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living.” — Thomas Jefferson to William Plumer, 1816. ME 15:46 [Emphasis added]

“I set out on this ground which I suppose to be self-evident : ‘That the earth belongs in usufruct to the living;’ that the dead have neither powers nor rights over it… We seem not to have perceived that by the law of nature, one generation is to another as one independent nation to another.” — Thomas Jefferson to James Madison, 1789. ME 7:454, Papers 15:392  [Emphasis added]

“Can one generation bind another and all others in succession forever?  I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter unendowed with will.” — Thomas Jefferson to John Cartwright, 1824. ME 16:48  [Emphasis added]

“The generations of men may be considered as bodies or corporations.  Each generation has the usufruct of the earth during the period of its continuance.  When it ceases to exist, the usufruct passes on to the succeeding generation free and unencumbered and so on successively from one generation to another forever.  We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.” — Thomas Jefferson to John Wayles Eppes, 1813. ME 13:270  [Emphasis added]

“These are axioms so self-evident that no explanation can make them plainer; for he is not to be reasoned with who says that non-existence can control existence, or that nothing can move something.  They are axioms also pregnant with salutary consequences.” — Thomas Jefferson to Thomas Earle, 1823. ME 15:470

“Forty years <after a> Constitution… was formed,… two-thirds of the adults then living are… dead.  Have, then, the remaining third, even if they had the wish, the right to hold in obedience to their will and to laws heretofore made by them, the other two-thirds who with themselves compose the present mass of adults?  If they have not, who has?  The dead?  But the dead have no rights. They are nothing, and nothing can not own something.  Where there is no substance, there can be no accident (i.e., attribute).” —Thomas Jefferson to Samuel Kercheval, 1816. (*) ME 15:42  [Emphasis added]

“A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held and may change their laws and institutions to suit themselves.  Nothing then is unchangeable but the inherent and unalienable rights of man.” — Thomas Jefferson to John Cartwright, 1824. ME 16:48  [Emphasis added]

“The laws of civil society indeed for the encouragement of industry, give the property of the parent to his family on his death, and in most civilized countries permit him even to give it, by testament, to whom he pleases.  And it is also found more convenient to suffer the laws of our predecessors to stand on our implied assent, as if positively re-enacted, until the existing majority positively repeals them.  But this does not lessen the right of that majority to repeal whenever a change of circumstances or of will calls for it. Habit alone confounds what is civil practice with natural right.” — Thomas Jefferson to Thomas Earle, 1823. ME 15:470

“Let us provide in our constitution for its revision at stated periods.  What these periods should be nature herself indicates.  By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years.  At the end of that period, then, a new majority is come into place; or, in other words, a new generation.  Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself that received from its predecessors; and it is for the peace and good of mankind that a solemn opportunity of doing this every nineteen or twenty years should be provided by the constitution, so that it may be handed on with periodical repairs from generation to generation to the end of time, if anything human can so long endure.” — Thomas Jefferson to Samuel Kercheval, 1816. ME 15:42  [Emphasis added]

“Every constitution, then, and every law, naturally expires at the end of nineteen years.  If it be enforced longer, it is an act of force, and not of right.  It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to nineteen years only.  In the first place, this objection admits the right, in proposing an equivalent.  But the power of repeal is not an equivalent.  It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.” — Thomas Jefferson to James Madison, 1789. ME 7:459, Papers 15:396 [Emphasis added]

“This principle, that the earth belongs to the living and not to the dead,… will exclude… the ruinous and contagious errors… which have armed despots with means which nature does not sanction, for binding in chains their fellow-men.” — Thomas Jefferson to James Madison, 1789. ME 7:460, Papers 15:396  [Emphasis added]

To the point of this posting, Locke defined the ‘state of nature’ as an original condition preceding the development of society, and described it as a state in which all individuals are perfectly free and equal. Locke stated this ‘state of nature’ is governed by the ‘law of nature,’ and the ‘law of nature’ is that of reason.  The ‘law of reason’ implies that all individuals should refrain from causing harm to each other’s liberty, property, and well-being.  Clearly this is what Thomas Jefferson stated in the Declaration of Independence.  Locke stated when all individuals obey the ‘law of reason,’ then peace and harmony will be maintained, and a ‘state of war’ will be avoided.

With the Assertion of Creator endowed, Natural, Unalienable Rights Arises Responsibility.

Locke also argued that in the ‘state of nature,’ the right to enforce the ‘law of nature’ belongs to each individual. Each individual in the ‘state of nature’ has the right to punish those who cause wrongful injury to his own life, liberty, or property.  According to Locke, whoever disobeyed the ‘law of nature’ also disobeyed the ‘law of reason,’ which required that all individuals be treated fairly and equitably. Whoever attempts to gain absolute power over other individuals engages in a ‘state of war’ with them.  Locke described the ‘state of war’ as being different from, and contrary to, the ‘state of nature,’ and thus disagreed with Thomas Hobbes, who in the Leviathan (1651) describes the ‘state of war’ as being identical to the ‘state of nature.’

According to Locke, the ‘state of nature’ is properly a state of harmony and cooperation between individuals, but according to Hobbes, the ‘state of nature’ is actually a state of discord and conflict between individuals.  Locke maintained that all individuals have a natural right not to be ruled by the power of any government except that which has been established by their consent. Each individual has an equal right not be subjected to the arbitrary or unlawful power of other individuals. No individual has the right to unlawfully harm the lives, health, liberty, or property of other individuals.

Finally, Locke explained that the natural freedom of all individuals is not a freedom to disobey the ‘law of reason,’ because individuals may lose their natural freedom by disobeying the ‘law of reason.’  The natural freedom of all individuals is a freedom to act rationally, and is a freedom not to have to comply with any arbitrary or unlawful demands by other individuals.

Upcoming in a future post:  A second part is entitled:  Corporate Wars Against Unalienable Rights – Balancing the Hysteria for Profit – A Manifesto.

The future post will include:

• Forums Where Claims for Violations of Unalienable Rights Are Heard.
• Claims Court
• Federal Courts
• State Courts
• International Courts
• Law Review Articles on:
• Federal Violations of Unalienable Rights
• Claims Against Private Military Contractors for Violations of Unalienable Rights
• Issues Regarding Claims of Sovereign Immunity for Violation of Rights