Moving quickly on Christmas Day after the US Senate voted 86 - 14 to pass the National Defense Authorization Act of 2011 (NDAA) which allows for the indefinite military detention of American citizens without charge or trial, Montanans have announced the launch of recall campaigns against Senators Max Baucus and Jonathan Tester, who voted for the bill.
Montana is one of nine states with provisions that say that the right of recall extends to recalling members of its federal congressional delegation, pursuant to Montana Code 2-16-603, on the grounds of physical or mental lack of fitness, incompetence, violation of oath of office, official misconduct, or conviction of certain felony offenses.
Section 2 of Montana Code 2-16-603 reads:
"(2) A public officer holding an elective office may be recalled by the qualified electors entitled to vote for the elective officer's successor."
The website Ballotpedia.org cites eight other states which allow for the recall of elected federal officials: Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin. New Jersey's federal recall law was struck down when a NJ state judge ruled that "the federal Constitution does not allow states the power to recall U.S. senators," despite the fact the Constitution explicitly allows, by not disallowing ("prohibited" in the Tenth Amendment,) the states the power to recall US senators and congressmen:
"The powers not...prohibited...are reserved to the States...or to the people." - Tenth Amendment of the U.S. Constitution.
The issue of federal official recall has never reached the federal courts.
Montana law requires grounds for recall to be stated which show conformity to the allowed grounds for recall. The draft language of the Montana petitions, "reason for recall" reads:
"The Sixth Amendment of the U.S. Constitution guarantees all U.S citizens:
"a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..."
The National Defense Authorization Act of 2011 (NDAA 2011) permanently abolishes the Sixth Amendment right to a jury trial, "for the duration of hostilities" in the War on Terror, which was defined by President George W. Bush as "task which does not end" to a joint session of Congress on September 20, 2001.
Those who voted Aye on December 15th, 2011, Bill of Rights Day, for NDAA 2011 have attempted to grant powers which cannot be granted, which violate both the spirit and the letter of the Constitution and the Declaration of Independence.
The Montana Recall Act stipulates that officials including US senators can only be recalled for physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense. We the undersigned call for a recall election to be held for Senator Max S. Baucus [and Senator Jonathan Tester] and charge that he has violated his oath of office, to protect and defend the United States Constitution."
Montana residents William Crain and Stewart Rhodes are spearheading the drive. Mr. Crain is an artist. Mr. Rhodes is an attorney, Yale Law School graduate, and the national president of the organization Oath Keepers, who are military and law enforcement officers, both former and active duty, who vow to uphold their Oath to the US Constitution and to disobey illegal orders which constitute attacks on their fellow citizens. Rhodes said:
"These politicians from both parties betrayed our trust, and violated the oath they took to defend the Constitution. It's not about the left or right, it's about our Bill of Rights. Without the Bill of Rights, there is no America. It is the Crown Jewel of our Constitution, and the high-water mark of Western Civilization."
Rhodes noted that:
"Two time Medal of Honor winner Marine General Smedley Butler once said "There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights." Time to fight. "
Butler famously ended his career as a Marine General by touring the country with his speech and book denouncing war, "War is a Racket."Butler confessed that he had spent most of his life as a "high class muscle man for Big Business, for Wall Street and the bankers...a racketeer, a gangster for capitalism..."
Eighteen states at present have recall laws, most of which do not apply to federal officials. For these and other states to recall federal officials, state legislatures would have to first pass or amend such laws.
Rising on the House floor to oppose the bill based on the military detention provisions for Americans, Rep. Tom McClintock said before the House vote:
" today, we who have sworn fealty to that Constitution sit to consider a bill that affirms a power contained in no law and that has the full potential to crack the very foundation of American liberty."
Vermont Senator Bernie Sanders said in opposing the final NDAA:
"This bill also contains misguided provisions that in the name of fighting terrorism essentially authorize the indefinite imprisonment of American citizens without charges."
And in a New York Times op-ed piece by two retired four-star U.S. Marine generals, Charles Krulak and Joseph Hoar, Krulak and Hoar said that "Due process would be a thing of the past."
Montana would be the first recall drive to be launched as a result of the vote for the NDAA military detentions provisions. A number of Facebook pages appeared after the passage of the bill from locations across the country.
Idaho: Crapo (R-ID), Nay Risch (R-ID), Nay
Illinois: Durbin (D-IL), Nay
Iowa: Harkin (D-IA), Nay
Kansas: Moran (R-KS), Not Voting
Kentucky: Paul (R-KY), Nay
Maryland: Cardin (D-MD), Nay
Minnesota: Franken (D-MN), Nay
Oklahoma: Coburn (R-OK), Nay
Oregon: Merkley (D-OR), Nay Wyden (D-OR), Nay
South Carolina: DeMint (R-SC), Nay
Utah: Lee (R-UT), Nay
Vermont: Sanders (I-VT), Nay
where was the vote to amend and remove the offensive unConstitutional section?
Steve said:Idaho: Crapo (R-ID), Nay Risch (R-ID), Nay
Illinois: Durbin (D-IL), Nay
Iowa: Harkin (D-IA), Nay
Kansas: Moran (R-KS), Not Voting
Kentucky: Paul (R-KY), Nay
Maryland: Cardin (D-MD), Nay
Minnesota: Franken (D-MN), Nay
Oklahoma: Coburn (R-OK), Nay
Oregon: Merkley (D-OR), Nay Wyden (D-OR), Nay
South Carolina: DeMint (R-SC), Nay
Utah: Lee (R-UT), Nay
Vermont: Sanders (I-VT), Nay
this is one of those darned if you do, votes... if you voted against it.. the media spin would be you voted against funding the military, and if you vote for it you voted for indefinite citizen detentions..
where was the vote to amend and remove the offensive unConstitutional section?
Lonecowboy said:Steve said:Idaho: Crapo (R-ID), Nay Risch (R-ID), Nay
Illinois: Durbin (D-IL), Nay
Iowa: Harkin (D-IA), Nay
Kansas: Moran (R-KS), Not Voting
Kentucky: Paul (R-KY), Nay
Maryland: Cardin (D-MD), Nay
Minnesota: Franken (D-MN), Nay
Oklahoma: Coburn (R-OK), Nay
Oregon: Merkley (D-OR), Nay Wyden (D-OR), Nay
South Carolina: DeMint (R-SC), Nay
Utah: Lee (R-UT), Nay
Vermont: Sanders (I-VT), Nay
this is one of those darned if you do, votes... if you voted against it.. the media spin would be you voted against funding the military, and if you vote for it you voted for indefinite citizen detentions..
where was the vote to amend and remove the offensive unConstitutional section?
I would also add this is exactly why we need to elect men of principle not compromise like oldtimer preaches- compromise is what brought this to pass. look at the ney column; Jim DeMint, Rand Paul, Lee, Coburn are expected but quite a few surprises like franken?????? what's up with that?
The National Defense Authorization Act (NDAA) for Fiscal Year 2012 is a controversial bill that has been passed by both houses of Congress separately, and a final version approved by the Senate on December 15, 2011.[1][2][3] Although the White House[4] and Senate sponsors[5] maintain that the Authorization for Use of Military Force Against Terrorists (AUMF) already grants presidential authority for indefinite detention, the Act legislatively codifies[6] the President's authority to indefinitely detain terrorism suspects, including American citizens, without trial as defined in Title X, Subtitle D, SEC 1031(a-e) of the bill.[7] Because those who may be held indefinitely include U.S. citizens arrested on American soil, and because that detention may be by the military, the Act has received critical attention
During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. citizens;[18] the amendment was rejected by a vote of 38–60.[19] Udall subsequently voted for the Act in the joint session of congress that passed it, and though he remained "extremely troubled" by the detainee provisions, he promised to "push Congress to conduct the maximum amount of oversight possible."[20]
A later amendment to preserve current law concerning U.S. citizens, lawful resident aliens, and others captured within the United States, sponsored by Senator Dianne Feinstein, was accepted 99 to 1.[21] Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while the Obama Administration and Senators John McCain and Carl Levin have argued that it does.[5]
Controversy
Section 1031 and 1032, controversial to the general public, were perceived as threats to the Bill of Rights and the freedoms of America. They allow for the indefinite military detention of potential terrorists, challenging the general judicial status of "innocent until proven guilty."
https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=112&session=1&vote=00210Mark Udall's amendment to strip out indefinite detention provisions from the defense authorization bill failed today, and the bill will likely pass the Senate with the provisions intact.
Here's the roll call. Udall got just 2 Republicans (Rand Paul and Mark Kirk) and 35 Democrats for his measure.
http://thomas.loc.gov/cgi-bin/bdquery/z?d112:SP1107:COSPONSORS(7):
Sen Leahy, Patrick J. [VT] - 11/28/2011
Sen Webb, Jim [VA] - 11/28/2011
Sen Feinstein, Dianne [CA] - 11/29/2011
Sen Durbin, Richard [IL] - 11/29/2011
Sen Wyden, Ron [OR] - 11/29/2011
Sen Paul, Rand [KY] - 11/29/2011
Sen Franken, Al [MN] - 11/29/2011
YEAs ---38
Akaka (D-HI)
Baucus (D-MT)
Bennet (D-CO)
Bingaman (D-NM)
Blumenthal (D-CT)
Boxer (D-CA)
Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Coons (D-DE)
Durbin (D-IL)
Feinstein (D-CA)
Franken (D-MN)
Gillibrand (D-NY)
Harkin (D-IA)
Johnson (D-SD)
Kerry (D-MA)
Kirk (R-IL)
Klobuchar (D-MN)
Lautenberg (D-NJ)
Leahy (D-VT)
Menendez (D-NJ)
Merkley (D-OR)
Mikulski (D-MD)
Murray (D-WA)
Nelson (D-FL)
Paul (R-KY)
Reid (D-NV)
Rockefeller (D-WV)
Sanders (I-VT)
Schumer (D-NY)
Tester (D-MT)
Udall (D-CO)
Udall (D-NM)
Warner (D-VA)
Webb (D-VA)
Wyden (D-OR)
There is a sense that this was a battle of two wrong sides, between codifying indefinite detention in the law versus allowing the executive branch to guide their own regime without legal checks and balances. There's also the issue of expanding the use of the Authorization to Use Military Force to allow for the detention of a much larger range of suspects.
