Rep. Tom McClintock opposed the bill on the House floor saying it:
specifically affirms that the President has the authority to deny due process to any American it charges with "substantially supporting al Qaeda, the Taliban or any "associated forces'" -- whatever that means.Would "substantial support" of an "associated force," mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don't know.
"Substantial support" of an "associated force" may imply citizens engaged in innocuous, First Amendment activities. Direct support of such hostilities in aid of enemy forces may be construed as free speech opposition to U.S. government policies, aid to civilians, or acts of civil disobedience.
All accusations of who is "Al Qaeda" rest solely on the word of the government, with no witnesses, evidence, or any other form of due process required.
Section 1021 also reads: "Nothing in this section shall be construed to affect existing law." But "existing law," in the words of Sen. Lindsey Graham a key mover of the bill, refers to Padilla v. Rumsfeld in the Fourth Circuit Court of Appeals, which upheld the government's claim of authority to hold Americans arrested on American soil indefinitely.
Section 1022 "(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS" states:
(1) UNITED STATES CITIZENS.--The requirement to detain a person in military custody
under this section does not extend to citizens of the United States.
However, although the section says it is not "required" that US citizens be held in military detention, it is nevertheless "allowed."
A nationwide recall campaign has been launched by Constitutionalist groups
and other activists seeking to recall the senators and congressmen who
voted for the detention legislation, either by using recall laws already
in place, or calling on state legislatures to pass them. States
currently allowing the recall of federal officials are Arizona,
Colorado, Louisiana, Michigan, Montana, Nevada, North Dakota, Oregon,
Washington, and Wisconsin.
The campaign is recommending that states without recall laws use Washington state's recall law as a model. Washington's law provides for recall only for two specific and serious grounds, one of which is violation of the Oath of Office. Citizens can lobby their state legislators to pass a recall law and then act immediately on it once it is passed.
Federal recall laws remain relatively untested in the courts, with two courts, a NJ state court and a federal appeals court in Idaho, having disallowed recall of two US senators. However, recall proponents consider the decisions weak and vulnerable. One analysis remarks that although "no federal legislator has yet been recalled..."
...It has not been for lack of interest. Rather, the process has languished in part due to debates on whether or not legal authority exists for recall of U.S. Senators and Congressmen; and, in the case of Idaho, interference by a state court prevented recall of a federal legislator.An Idaho state court in an unreported memorandum decision interpreted Idaho's
recall statute to only apply to state officers, and further opined that the law was
unconstitutional for the dubious reason that it would constitute a new "qualification" for office in addition to age, residency and inhabitancy, the existing stated qualifications in the U.S. Constitution.
A recall law is not a change in the pre-qualifications required to be a senator or congressman, such as age or residency. The analysis states:
...the Idaho Court's reasoning is, in this author's view, flawed and possibly vulnerable...
The other main claim made by opponents of federal recall is that
unilaterally changing the term of office is prohibited by the
Constitution. But a recall does not change the term of office. The term
stays the same and the replacement only serves out
the remainder of the term, then is up for election again, for the same term as before.
Federal recall proponents argue that the right of the people of a state to recall federal legislators is firmly grounded in the Tenth Amendment of the U.S. Constitution, which "reserves" all powers not specifically enumerated as the preserve of the federal government "to the states...and to the people." The Constitution requires an "affirmative prohibition," in court language, in order for a power to not be included in the Tenth.
Proponents further note that if the Constitution is to be adhered to, the "right to a speedy and public trial, by an impartial jury," i.e. the Sixth Amendment, is just as firm a part of the Constitution as language which might be interpreted to prohibit federal recall.
Some scholars contend that the Tenth was the Founders' way of assuring that the Constitution was to be viewed as a straitjacket on the government, not on the people, and point out that measures like recall are also fully provided for in the Declaration of Independence. The Declaration states that in cases in which the government has become "destructive" of the ends of preserving basic rights, for which it was instituted, the people have the "right to alter or abolish" the government.
In addition, that the power to recall senators and congressmen
resides in the people can be inferred by the existence of the
Constitutional provisions for expulsion from either house by vote. It
would be absurd to conclude that the Founders intended for congressmen
to be more responsible to their colleagues than to the very constituents
they represent. If a congressman's term can be cut short by a
super-majority vote of his or her colleagues, surely a state may
exercise the same power in narrowly-defined circumstances, such as
violation of the Oath of Office, which for representatives and senators
is:
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