Ben Johnson

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VA ban on detention of U.S. citizens opens debate: can pro-lifers be indefinitely detained?

Ben Johnson

RICHMOND, VIRGINIA, March 14, 2012, (LifeSiteNews.com) – A bill that passed both houses of the Virginia legislature by near-unanimous margins would prevent the state from participating in the unconstitutional detention of an American under the National Defense Authorization Act (NDAA). Although Governor Bob McDonnell has not yet signed the bill, it has Americans across the country debating whether the federal law would allow the government to indefinitely detain unfavored groups, like pro-lifers, who are often branded as “terrorists,” without a trial.

Virginia Delegate Bob Marshall, R-Manassas, authored H.B. 1160, which received only one no vote in each house. It states no law enforcement in the state, “or any member of the Virginia National Guard or Virginia Defense Force…on official state duty, may engage in any activity that aids an agency of or the armed forces of the United States…as provided by the National Defense Authorization Act…in the investigation, prosecution, or detainment of any citizen of the United States in violation of Article I, Section 8 or 11 of the Constitution of Virginia.”

The NDAA, which President Barack Obama signed on December 31, allows the president to hold enemy combatants in military detention facilities and to determine which groups may be considered terrorists without judicial or congressional oversight. However, the Secretary of Defense is required to “regularly brief” Congress about “covered persons.”

Shortly after the act was passed, Constitutional attorney John Whitehead and founder of the Rutherford Institute told LifeSiteNews.com the “law can apply to pro-lifers.” The law’s sweeping new powers “would allow the military to show up at your door if you’re [deemed] a ‘potential terrorist,’ and put you in military detention where seeing a lawyer is difficult.”

In 2009, the Department of Homeland Security issued a nine-page document on “Rightwing Extremism,” which said those motivated by issues like immigration, abortion, or opposition to same-sex “marriage” are potential terrorists. An August 2010 training session for federal law enforcement further depicted the pro-life movement as a haven for violent extremists. Marshall told LifeSiteNews the reports criminalized differences in political views. “It’s Saul Alinsky on steroids, but that’s what this Obama administration does,” he said.

Local media have confirmed that Virginia Governor Bob McDonnell has “concerns” about the bill. According to Virginia political analyst Dr. Bob Holsworth, McDonnell worries it “could prevent the kind of collaboration and cooperation that you might need between the federal authorities and the state authorities if they’re pursuing a particular kind of terrorist plot or act that could occur in Virginia.”

Marshall and others say the real issue is politics. McDonnell is widely considered to be on the short-list for vice president. Mitt Romney was booed when he told a presidential debate audience he supported NDAA. “I recognize that when you’re in a setting where there are enemy combatants and some of them on our own soil, that could possibly be abused,” he said, but “I don’t think he’s [Obama’s] going to abuse this power.” 

Marshall, who is seeking the Republican nomination for Virginia’s open U.S. Senate seat, hand-delivered a letter to McDonnell asking him to sign the bill. The governor has not indicated whether he will do so, veto it, or exercise a prerogative of his state and amend legislation that comes to his desk.

Those in the pro-life movement are divided about whether the NDAA could apply to American citizens.

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Although Section 1022 of the bill states, “The requirement to detain a person in military custody under this section does not extend to citizens of the United States,” some, like Whitehead, contend the law allows detention as an option for Americans captured abroad without a trial. Marshall said the right to habeas corpus is what “separates us from the likes of Nazis, Communists and other totalitarian governments…No one should be entrusted with the totalitarian powers encompassed in NDAA.”

Congressman Tim Griffin of Arkansas said the new law poses no risk to American liberties. “Section 1021 would NOT change the status quo regarding the authorities provided by the AUMF as they relate to U.S. citizens captured or arrested in the U.S,” he said. “This provision was never intended to address the law as it relates to U.S. citizens, one way or the other.”

“A U.S. citizen enemy combatant held on U.S. soil has full constitutional rights like any U.S. citizen, including the right to challenge the legality of his detention through a habeas corpus petition in a civilian federal court. Again, nothing in section 1022 addresses or seeks to change that,” the congressman said.

Yet Griffin acknowledged it “deserves mention that the U.S. Supreme Court has never addressed a case of a U.S. citizen in two specific circumstances: (1) a U.S. citizen enemy combatant picked up on U.S. soil as opposed to overseas; or (2) a U.S. citizen enemy combatant picked up overseas and held overseas.”

Bob Marshall found such reassurances hollow. President Obama added a signing statement to the bill promising not to use its provisions against U.S. citizens, he said. “Why would he make a signing statement like that if he didn’t get the power out of that stupid law? His statement is a complete non sequitur if it weren’t given,” Marshall told LifeSiteNews.com.

“These people in Congress don’t read the bills, and half the time they don’t even understand the ones they do read,” he said. “I don’t trust them. I don’t.”

The problem with this defense is that it highlights what the bill intends to do, rather than what its language allows, critics say. John Whitehead wrote in a statement e-mailed to LifeSiteNews.com, “When members of Congress are defending their support for the bill, they are interpreting the language in a way that best suits American citizens, rather than acknowledging that the language is so ambiguous that it calls into question very basic constitutional rights.”

“The fact that Tim Griffin needed to take the time to assure his constituents that he wasn’t voting for the indefinite detention of Americans shows that, at the very least, the bill is so poorly worded that one could argue effectively that it codifies indefinite detention,” he wrote.

Under NDAA, he believes, “it is unclear, but possible, that Americans captured outside the United States may be detained indefinitely.”

Some who do not immediately fear the bill’s language urge pro-lifers and Constitutionalists to exercise vigilance about the way it is implemented or used in the future.

Dana Cody of the Life Legal Foundation wrote in a statement e-mailed to LifeSiteNews.com that Rep. Griffin’s reassurances led her to “conclude that currently there need be no fear of the NDAA being misused to target and detain the politically disfavored, such as pro-life advocates.” The act applied only to those whom the president states are “part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States.”

However, the president must submit procedures to define “covered person,” she noted, definitions the executive branch can change at will. “We will be monitoring the implementation process, and will evaluate whether the above analysis needs to be revised as implementing procedures are adopted,” Cody told LifeSiteNews.

“The law is only as good as those who are sworn to uphold it,” she wrote, “and we will keep watching in the hope that what Justice Scalia calls the ‘abortion distortion’ will not affect the enforcement of the NDAA.”

 

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