Last weekend, the Republican Liberty Caucus state convention approved a resolution calling for South Carolina to obstruct portions of the National Defense Authorization Act of 2012 (NDAA) that provide for the indefinite detention of American citizens without the right to have that arrest reviewed by a judge to ensure the arrest was lawful.
The RLC wants South Carolina to follow in the footsteps of Virginia and Arizona, whose legislatures recently passed similar resolutions to refuse their respective states’ cooperation if their citizens are detained without the right, guaranteed in the Constitution, to a writ of habeas corpus– the right to have a judge review the detention for lawfulness.
At issue are sections 1021 and1022 of the NDAA which permit indefinite detentions of anyone charged with being “part of or substantially supported [by] al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners”, or anyone who commits a “belligerent act” against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, “without trial, until the end of the hostilities”. Section 1022 goes on to say that those detained may be detained by the armed forces rather than civilian authorities.
The Republican Liberty Caucus of South Carolina does not object to detaining, prosecuting, and convicting anyone who commits or is planning to commit violent acts against the United States; however, we do strongly believe in due process of law. Because innocent people are sometimes charged with crimes, we believe that the Constitutional protections we have to due process should be honored.
The founders inserted protections on behalf of American citizens from potential abuses of power, including the right to have an arrest challenged for lawfulness in front of a judge (Article I, Seciton 9, Clause 2). The Constitution goes on to set a very high burden of proof against treason, saying in Article III, Section 3, “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” The constitution does not permit the government to lock up anyone it wants indefinitely without a judge’s oversight.
There has been some controversy as to whether the NDAA sections 1021 and 1022 would actually be used against U.S. citizens. The Obama Administration assured us he would not use it in that way, Sen. Carl Levin (D-MI) said, “the language which precluded the application of section  to American Citizens was in the bill that we originally approved in the Armed Services Committee and the Administration asked us to remove the language which says that US Citizens and lawful residents would not be subject to this section.”
Because the language is dangerously vague and leaves wide-open the interpretation of sections authorizing indefinite detentions of U.S. citizens, Virginia and Arizona have passed resolutions saying if the NDAA is ever used in that way, the states would resist it. Their resolutions do not make a determination of whether the NDAA actually authorizes the actions some fear it does, but puts the government on notice that those states won’t cooperate with the federal government if it ever is used in that manner. Such resolutions are entirely reasonable and even err on the side of being too mild; however, it’s a good first step to resisting potentially unconstitutional federal arrests.
While it’s not likely that such legislation can pass in this session of the state legislature since the session is coming to a close, we can get ready for the next session. The key to doing this is electing state House and Senate members who are committed to opposing unconstitutional indefinite detentions of South Carolina citizens.
So where do your candidates stand? Ask them at every opportunity how they feel about Virginia and Arizona’s NDAA resolutions and whether they support one in South Carolina too. Also, keep up to date on the progress of these resistance resolutions across the country from the Tenth Amendment Center. Together, we can help bring this issue to the table before our civil liberties and due process rights are put in jeopardy.
Elected officials and candidates that have said they would support this effort (we’ll keep updating this):
Peter vonLehe Ruegner (House district 110 candidate)
Ryan Payne (House district 44 candidate)
Sen. Shane Martin (Senate district 13) *Introduced S.1184 in SC Senate
Sen. Lee Bright (Senate district 12) *Co-sponsor of S.1184 in SC Senate
Sen. Kevin Bryant (Senate district 3) *Co-sponsor of S.1184 in SC Senate
Sen. Larry Grooms (Senate district 37) *Co-sponsor of S.1184 in SC Senate
Rep. Bill Chumley (House district 35)
John Steinberger (Senate district 41 candidate)
Richie Vow (Senate district 53 candidate)
Rep. Mike Forrester (House district 34)
Eddie McCain (House district 39 candidate)