Feinstein's "Fix" did not Fix the NDAA - GO here to see why. Plz see "Did Dianne Feinstein's "Fix" on AUMF Language Actually Authorize Killing American Citizens (Be sure to see the pertinent conversation in the Comments on the emptywheel.net site and also below on oneheartforpeace)
SO, PLEASE Call your elected officials -- including the President -- NOW to say NO loud and clear to the National Defense Authorization Act (NDAA). (And even after it is declared cut in stone - complain loud and clear!) CALL EMAIL FAX the White House. Maybe President Obama will flip-flop again with enough pressure? Plz, no excuses - don't delay! Find Contact Info for our US folk here Capitol Switchboard 202 224-3121
File: A mosaic LAW by Frederick Dielman, 1847-1935.JPG*
CBS reported Wednesday evening that Laura Murphy, director of the ACLU Washington Legislative Office said, "If President Obama signs this bill (The National Defense Authorization Act - NDAA), it will damage both his legacy and American's reputation for upholding the rule of law."
Our best experts are saying things like "The last time Congress passed indefinite detention legislation was during the McCarthy era, and President Truman had the courage to veto that bill."
My daughter and son both had birthdays recently. So once again, I had the dillemma of wanting to make homemade cakes - but knowing they always flopped. My daughter pointed out with tact and truth: Mom, you're a great cook just not at cakes. It's because with cakes "you don't follow rules". I finally got it.
The Rule of Law is a requirement, not a mere matter of whim or belief in an individual's or a certain group's morality.
Without a way to challenge an executive or legislative action in court, the executive and legislative branch is not truly bound by the rule of law.
So what are we allowing TODAY as the NDAA measure to end some of our most basic laws proceeds? What is happening with a detainee' ability to argue - successfully or not -that she deserves the US Bill of Rights as well as whatever process the Constitution says he or she is due? What is happening as we give unconscionable power into the hands of our President?
Over our relatively small number of years we've fought to be a democracy, we've also seen the grave need for new rulings for which we've worked and battled long and hard - nationally and stateside. We've needed and got laws which don't give as much wiggle room for hate crimes and for bias on issues of life and death. In North Carolina, for example, The Racial Justice Act has set the stage for better safeguards, not less and has been saved (for now) by NC Gov. Beverly Perdue's rejection of the repeal voted on in the state's congress.
We and our representatives in the courtroom and on the police beat need help to do what we say we will do about fairness. We need the thoroughness and care required by a law about fairness -- even if we are inconvenienced in the process. That the court is going to be just on racial justice without such a safeguard -- as some of the legal "experts" and representatives in NC have claimed -- has simply not been true in history -- neither long past nor more recent.
Like rules for making a decent cake, we need such guidelines. To repeal the same after such a disgusting history without it, and such hard, long, careful work to get it, would be to scoff the "rule of law" for the rights of all.
Sometimes even the best lawyers spout their intentions of deciding on justice fairly by themselves on many issues. They often complain about certain laws that seem to cramp their style or hold things up. Often such self-aggrandizing folk claim they would follow the principles just as well without the law. But is this always or even often true --given the history of human kind without such just law?
While the term "the rule of law" in modern times gives credit to A. V. Dicey, the legal concept can be traced through history to many ancient civilizations.
Aristotle opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law when he said: It is more proper that law should govern than any one of the citizens. The Roman statesman Cicero has been quoted as saying, "We are all servants of the laws in order that we may be free."
In Islamic jurisprudence rule of law was formulated before the twelfth century, so that no official could claim to be above the law, not even the caliph.
In 1215, the English King John placed himself and England's future sovereigns and magistrates at least partially within the rule of law, by signing Magna Carta. In the US, the phrase "rule of law" is found in a petition to James I of England in 1610from the House of Commons:
"Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government...."
In 1776, the notion that no one is above the law was popular during the founding of the United States, for example Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king."
The following, from wikipedia on the Rule of Law may help us (capitalization is mine):
"Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights...
'All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays WITHIN ITS ENUMERATED POWERS and respects the constitutionally protected RIGHTS OF INDIVIDUALS... "
Law Professor Frederick Mark Gedicks among many others have written that "Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all."
The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:
"... An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are ALL UNACCEPTABLE. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The International Bar Association calls upon ALL countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities. "(World Justice Project)
British jurist A. V. Dicey who popularized the phrase "rule of law" in 1885 emphasized three aspects of the rule of law:
1. No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
2. No one is above the law and everyone is equal before the law regardless of social, economic, or political status.
3. The rule of law includes the results of judicial decisions determining the rights of private persons.
Some would argue that if there's a fear of being killed - it's OK to assasinate or in the case of the NDAA lock up (with or without charge or advocacy) whoever is deemed to be the "villain". This, of course, creates wide differences in standards from place to place and among WHO decides. What if who decides wants to hide the facts from public eyes? Isn't that a little like saying I can simply "wing-it" -- disregarding the necessary rules -- and end up with a beautiful cake?
* At last, I learned my lesson this year and for the first time I remember I DID make -- not only one lovely cake -- I made TWO (even if I did make them from mixes). Just maybe, next year, I'll go for "from scratch - but you better bet, I'll follow the rules with cakes if I'm going to have happy eaters.
My daughter -- just yesterday -- also spoke wisely for the value of rules in other aspects of our social lives. She reminded me calmly -- and with absolutely perfect reasoning -- that I needed to have an eye to LONG-RANGE results when it came to certain kinds of conversations within the family. Isn't this the same for our Rule of Law?
What are we doing NOW for our nation's future? What about our children's and grandchildren' futures?
What do we gain in our communities and societies by seeking to calm temporary fears with bandaid measures and protections of officials over the people indicted or arrested? What about our proven overload of security measures like drones and waterboarding? What about our random disappearances - killings - imprisonments - tortures and the humiliation of unecessary threats and other intimidations? )
How are we making our societies and nations safer when we merely tantalize "other extremists" to "do unto others as done to them" rather than the more sound version of the golden rule?
What will we tell our children someday when they (and their compatriots and fellow democracy-lovers around the world) wonder what we did so that they are unable to receive justice and fair advocay in a court of law? Are we going to have to tell them - - if we are telling the truth -- that we messed up our's and their constitution and bill of rights out of fear, ignorance, because we were merely "following orders" and unwilling to stand alone?
What if we 'egg on' more and more trouble with our injustices than we assume we've been dealt? Haven't we already done enough damage along this line?
What if we are setting continual patterns that will continue to multiply? What if our supposed and real "enemies" deal the same to our own sons and daughters? What about the "recruitment tools" we simply plase securely in the palms of those we call extremists? What about the absolute fact that our nation sells -- barters -- and distributes more small handguns around the world than any other nation? Who among us has seriously considered and acted upon the fact that many of those end up in the hands of various manner of extremists/terrorists?
What and how many international agreements -- to which we are party -- do we continue to despise?
What kind of nation does the rest of the world watch us become as we call many of our laws and repeals of older, longer-standing rulings and principles null and void?
Look what has happened with the misuse and over-use of our emergency methods -- occupations before agreed upon -- use of torture such as as Abu Ghraib and Gitmo and many other places still under US auspices? Are we as a nation really happy with our Patriot Acts and growing surveillance state and the drones now using our skies without our permission? What of our willingness to become a police state step by step?
What about our US leaders choice to in cahoots with corporations such as Verizon in sharing private information?
What about the actual origins and choice of this particular time in our history - right before holy and holly days to quickly process such a ruling before we can all sit down and take a breath and learn what in the world is going on now?
I'm writing this little Op Ed on The US Bill of Rights Day. Today, The Bill of Rights Defense Committee (BORDC.org) states:
"The Bill of Rights was meant to ensure basic rights during times of war and times of peace, regardless of who is in power. IN ORDER TO ENSURE ITS FUTURE, we must keep using the First Amendment and speaking out when our rights and the rights of non-citizens are threatened."
In 1941, 150 years after the first 10 amendments were ratified, President Franklin Roosevelt declared December 15 "Bill of Rights Day."
How will we be proud of ourselves next year -- if today -- by such rulings as the National Defense Authorization Act -- we end up declaring away our most basic, famed and protective American rights?
If you are even just a little bit concerned - why not call NOW? Why don't we seek to stop such an unruly "law" or at least to say WHOA Nellie -- slow down! ...let's have some more national conversations first. Then we can all take a deep breathe before we sign our birthrights away.
(Some of the history notes above - especially where quoted with or without quotations were found at free Wikipedia on Rule of Law. Capitalizing freedom for emphasis on this unusual day is mine.)
* cake image above found at photobucket.com - credit goes to BARB43_bucket
After you've made your calls --
Source for breather image: myrevelment.com via Kelly on Pinterest