Indefinite Detention, The NDAA, and You

Regular readers of this blog know that it is entitled "Paying for Protection" because it focuses on the ways that we as Americans give up our rights and freedoms to the government in exchange for promised protection against all sorts of potential ills.  In no case is this more evident than in the 2012 National Defense Authorization Act, which allows indefinite detention without charges without trial of persons who are accused of acting against the U.S. government.

The Indefinite Detention Provisions of the defense spending bill passed by Congress last year and signed by President Obama on December 31, 2011, state that the U.S. government has the right to detain  "a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported hostilities in aid of such enemy forces."  The act does not define what is meant by "associated forces" or "directly supported." 

Although the Obama Administration stated that the bill would never be used against American citizens, even his most liberal allies concede that the president has vigorously defended this law since its passage.  Almost immediately after it was passed, a group of journalists brought suit against this law claiming that because of their work in getting interviews with terrorists they could be subject to indefinite detention without trial.  Judge Forrest agreed and issued a temporary injunction against enforcement of the indefinite detention provisions in May of 2012.  In August, the plaintiffs and the government went back to court to argue their case again, and on September 13th the judge issued a permanent injunction on the grounds that the indefinite detention provisions violate the U.S. Constitution.  However, the Administration that promised to never enforce these provisions declared them necessary to national security and persuaded a different judge to lift Judge Forrest's ban on indefinite detention.  That means that as of the date of this writing, the government has the power to arrest and detain, indefinitely and without trial, any American for pretty much any reason.  A three-judge panel is supposed to begin a review of section 1021 tomorrow (September 28th).

Most disturbing, however, are some of the facts of the law that the suit in front of Judge Forrest revealed.  First, a person can be detained by "unwittingly" supporting belligerent forces, such as innocently sending money to a friend who is on a terror watchlist.  Attending a party or a fundraiser for a group that ends up on the terror watchlist can lead to a black van arresting you and taking you away, as can attending a protest or a rally.  The government attorneys refused to assure Judge Forrest that the journalists performing their normal duties would be safe from detention.

Since word has begun to spread of the dangers of indefinite detention, local governments have gotten involved.  At least nine states have passed "anti-kidnapping laws" to protect their citizens against indefinite detention without trial by the federal government.  But enforcement of these laws would be difficult, since the military will be handling these detainees on military bases.

The very concept of indefinite detention flies in the face of everything that we as Americans believe and every protection that has been afforded to us by our Constitution.   The Fifth and Sixth Amendments to the Bill of Rights guarantee Americans due process, and those guarantees are being destroyed by sections 1021 and 1022 of the NDAA.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment of indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Although the law was supposedly passed to help the government contain al-Qaeda, Americans need to be asking themselves who it is really intended for.  Do we really believe that a government that has invited the Muslim Brotherhood to the White House but can't find time to meet with Israeli President Benjamin Netanyahu really needs indefinite detention to deal with al-Qaeda?  I think it much more likely that the real targets of indefinite detention are the rest of us in light of recent comments from Chuck Schumer and other high profile Democrats that the First Amendment is not absolute and in light of the President's remarks to the UN only yesterday that the future cannot belong to people who are disrespectful of Islam. (That would be everyone who professes a different faith than Islam, along with those who profess no faith at all, since Islam requires that everyone be a follower.)  Those facts, coupled with Homeland Security's watchlist of potential domestic terrorists, which includes people who believe in pro-life causes, ex-military, and people who quote the Constitution, should sound warning bells for our entire nation.  This law and it's potential applications have the ability to destroy the very fabric of our nation.

What can we do?  Joyce and I have written our new novel, The Chosen, about indefinite detention.  In our novel, set just three years from now, the main character is detained partially because of his support of the nation of Israel, and his wife takes his case to the Supreme Court.  But in real life we know that we cannot rely on the U.S. Supreme Court to undo the consequences of elections. If the section 1021 of the NDAA is to be stopped, we the people have to the ones to stop it.

  1. Everybody needs to get out and vote in this election.  The Obama Administration, in spite of his protests to the contrary, has been a driving force in getting section 1021 of the NDAA moved forward.  He insisted that the language be put in the bill in the first place, and his Adminstration has fought every legal challenge to it.  His assertions that he will never use it against the American people are lies--if he weren't planning to use it he wouldn't be fighting so hard for it.
  2. We need to start pressuring Congress and the Senate about this language.  All references to indefinite detention need to be removed from the 2013 National Defense Authorization Bill.  We also need to find out whether we need to pass additional legislation to repeal the 2012 provisions. 
  3. For years we have had persistent rumors of FEMA camps waiting for detainees.  The newest rumor involves a FEMA camp at Palmdale, California, that has a crematorium and reportedly not much else. We need to pressure Congress to open an investigation to determine whether these rumors are true.  If it is determined that they are true and that we have allowed the government to construct the equivalent of massive concentration camps on U.S. soil, we need to insist that all such camps be destroyed.  Such facilities are antithetical to American freedoms and should not exist.

Get informed. Get involved.  Stand up for the Constitution.  Fight for the laws of our country.  Every American deserves a trial.

Read Alexandra's new novel, The Chosen, free on Kindle October 3rd through October 8th.

Alexandra Swann is the author of No Regrets: How Homeschooling Earned me a Master's Degree at Age Sixteen and several other books. Her newest novel, The Chosen, about one small group of Americans' fight to restore the Constitution and end indefinite detentions without trial, will be available on Kindle and in paperback October 1st. For more information, visit her website at

GLC supports Scottish Youth Parliament's One Fair Wage campaign

GLC's Mike Dailly signing the
One Fair Pledge with
John Gillies, MSYP.
The 'One Fair Wage' campaign has been set up by the Scottish Youth Parliament (SYP) to encourage individuals and organisations to pledge their support for a Scottish Living Wage.  SYP believes everyone in Scotland deserves to earn at least enough to live on.

The SYP believe it's obscene for people to be working whilst still trapped in poverty and that all workers - regardless of how old they are - should earn a Scottish Living wage. Govan Law Centre agrees, and applaudes the SYP for launching such a fantastic campaign.

A Scottish Living Wage can make a real difference to half a million low-paid Scots. Over the next year the Scottish Youth Parliament will call on politicians, businesses, councils and charities to pledge their support for a Scottish Living Wage.  GLC hopes you will pledge your support too. It's time for One Fair Wage.

Northern Rock drops appeal as Scottish Government promises law reform for lenders

Northern Rock (Asset Management) plc (NRAM) has asked the Court of Session to dismiss its appeal against the decision of Sheriff Deutsch in the NRAM plc v. Millar GLC test case. NRAM's appeal was dismissed on Friday, 7 September 2012 (the procedural hearing date of the case) with judicial expenses awarded in favour of the defender.

The reason given by NRAM for abandoning its appeal to the Inner House was because it had become aware the Scottish Government was now willing to bring forward law reform to amend its 2010 Pre-Action Requirements Order (PAR) so that 'default' would mean a simple missed mortgage payment. The ruling in Millar meant that key information - and a final last chance to remedy mortgage 'default' - had to be provided on or after the expiry of the calling up notice, generally served before court proceedings were raised.

It is understood* (see update below) the Scottish Government will amend the definition of 'default' in the PAR, so that there will be no need to provide key PAR information prior to proceedings being raised.

GLC's Principal Solicitor, Mike Dailly said: "We believe the Millar judgment was fantastic news for Scottish consumers because it meant they would always get an extra and final chance to avoid court proceedings after a calling-up notice.  Govan Law Centre is dismayed to hear that the Scottish Government will now scrap this final last chance for Scottish homeowners, and in so doing render the Pre-Action Requirements toothless, and in effect a duplication of the FSA's existing equivalent MCOB rule. The Scottish Government should be backing struggling homeowners and not legislating for lenders".

GLC notes that Sheriff Deutsch had eloquently explained the logic of PAR information being sent after the expiry of a calling up notice in his judgement in Millar (at paragraph 84, which is reproduced below).

The first public mention of the Scottish Government legislating for lenders was raised in an article in the industry magazine, the Mortgage Finance Gazette, where Mr Rob Aberdein of Aberdein Considine & Co., Solicitors (a Scottish firm who act for a number of lenders in repossession proceedings in Scotland) said in relation to the NRAM v Millar case:

"Should an appeal not be forthcoming or be unsuccessful then I did meet the Scottish Government at the start of the year on the matter of the impending Glasgow cases decision and have exchanged correspondence with Alex Neil MSP, the cabinet minister for infrastructure and capital investment, on the topic.  Both are supportive of corrective secondary legislation as they believe the decision is not consumer friendly and potentially damaging to their goal of avoiding repossession and resultant homelessness".

GLC is not aware of evidence whatsoever to support the assertion by Mr Aberdein, which he ascribes to the Scottish Government.  We note that lenders have already changed their practice since earlier this year to comply with the legal reasoning in Millar. Further, we note that any proposed law reform cannot be retrospective.

NRAM plc v. Millar &; RBS plc v. McConnell judgment:
[84] Regardless of whether those responsible for managing the bill which gave rise to the 2010 Act operated under a misunderstanding as to whether non-payment constituted a default for the purposes of section 19 of the 1970 Act, now that the position has been clarified, it appears to me that the required information will actually be sent to debtors at a time when, given the recent expiry of the calling up notice, they might be more inclined to pay that information some serious regard. At that point the debtor should be in no doubt that the creditor may apply to the Sheriff court for warrant to repossess and to sell the property. That level of understanding on the part of the debtor might be less likely to exist if, in accordance with the pursuers' interpretation, the default which triggers the requirement to provide information, need be no more than one month of arrears. The possibility must exist that there will be debtors with a tendency to pass in and out of an arrears position on a regular basis. One corollary of that situation might be that such persons would receive a regular stream of correspondence providing the required information. Such a volume of similar correspondence might be expected to be ignored. It might also be expensive for creditors.

* Update from 24 September 2012: Scottish Government confirms it has not made any decision to amend the 2010 Order: link to letter confirming same.

Taking Ownership

First the Obama Administration told us that if we own a business we did not build it--somebody else did that for us.  SeeThe Government Giveth and the Government Taketh Away  for more info. Now this week, the DNC wants us to know that we belong to the government.  In a highly circulated video aired at the convention this week, a narrator tells us that "government is the only thing that we all belong to."  He goes on to explain that we have various religions and clubs, but all of us belong to the government and that is what unites us as Americans.

See the video here:

After the video began receiving a lot of negative feedback, the Obama Campaign began immediate damage control insisting that they had nothing to do with the video.  Regardless of their protestations of innocence, however, the fact remains that the video aired as part of the DNC convention in Charlotte.

This "Property of Uncle Sam" mentality is a huge part of what is wrong with our country today. The current administration apparently believes that they have a right to take over property, water rights, healthcare, and all other aspects of American life.  And now we know why--we belong to the government, first and foremost so whatever we have they by rights own since they own us.  To identify ourselves as belonging to the government is to deny individual freedom and individual rights.  It is a dangerous theory of the relationship between the state and the people that can only end in totalitarianism.

In the Gettysburg address, Lincoln spoke eloquently of government by the people, for the people, of the people--not people by, of and for the government.  In the next 60 days, our country gets to make a decision about what kind of a country we want to be--a country in which the government owns the people, controls all of our property and micromanages our lives, or a country in which we own the government and are willing to take responsibility for firing unresponsive politicians and replacing them with elected officials who understand that at the end of the day they answer to us.  It is a decision that will affect the future of our nation for generations.  May we all choose wisely.

Alexandra Swann is the author of No Regrets: How Homeschooling Earned me a Master's Degree at Age Sixteen and several other books. Her newest novel, The Planner, about an out-of-control, environmentally-driven federal government, was released June 28, 2012. For more information, visit her website at

Scottish action on payday loans: update

GLC has been invited to present its Discussion Paper on proposals to help financially vulnerable Scots cope with predatory payday lending practices at a roundtable discussion in the Scottish Parliament next month.

The event is being hosted by Kezia Dugdale MSP, Shadow Youth Employment Minister on Wednesday 24 October 2012, and will bring together a wide range of national consumer, civil society and advice bodies.

GLC believes the Scottish Government can introduce a Fast Track Debt Arrangement Scheme targeted at payday loans under existing powers in the Debt Arrangement and Attachment (Scotland) Act 2002 as amended.

New fast track debt arrangement scheme for usury rate payday loans?

There has been an exponential growth in the UK payday loan market, with an increasing incidence of our clients in Scotland being unable to pay their rent, mortgage or utility bills due to indebtedness to exploitative payday loans. With payday loans having equvialent APRs of 3,000 to 5,000% - clearly usury, unethical and unfair - Govan Law Centre (GLC) believes the Scottish Government and Parliament must look to a solution in the public and consumer interests.

The Minister for Debt and Insolvency in Scotland, Fergus Ewing MSP, has accepted there is a problem with payday lending and has stated his belief that greater regulation is needed by Westminster. Yet, there is much the Scottish Parliament could do to help Scots struggling to meet the unfair and unsustainable costs of high interest credit.

GLC is publishing a Discussion Paper, which proposes the creation of a new sub-category of the Debt Arrangement Scheme (DAS), which could be designed to provide a fair but flexible form of debt relief for high interest credit only.  This would mean that instead of all debts being repaid as part of a Debt Payment Programme (DPP), the debtor would have an option of repaying payday loans in a 'mini-DAS' on a fast track basis.

Such a 'fast track' scheme could target usury rate loans by ensuring the principal sum(s) were repaid fairly within 24 months, with high interest and roll-over charges being suspended and written off following a successful repayment of the debt. Such a scheme could provide essential respite to consumers in Scotland trapped in a cycle of payday loans, enabling other priority debts to be paid, and helping citizens to take control of their financial position.  We would welcome your thoughts on this proposal: GLC Discussion Paper on a new Fast Track DAS for usury rate loans in Scotland.

Finally, we believe that the Scottish Ministers already have power from sections 7 and 7A of the Debt Arrangement and Attachment (Scotland) Act 2002 to introduce a Fast Track DAS for payday loans right now, without the need for primary legislation or undue delay.