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Montanans Launch Recall of Senators Who Approved NDAA Military Detention. Merry Christmas, US Senate.

By Ralph Lopez - Posted on 25 December 2011

Disclaimer: I am now a volunteer press contact for this campaign.

From the press release (last revised 12/28/2011):

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, and Congressman Denny Reberg, who all 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 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.

Montana law requires grounds for recall to be stated which show conformity to the allowed grounds. The recall drive makes the following points:

1. "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..."

2.  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.

3.  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.

4.  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.

5. Section 1021 of the National Defense Authorization Act reads in substance: "Congress affirms that the authority of the President to detain ...A person who was a part of or substantially supported al-Qaeda...or associated forces...including any person who has...directly supported such hostilities in aid of such enemy forces...The disposition of a person...may include...Detention...without trial until the end of the hostilities..."

6. “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.

7. Section 1021 reads: "Nothing in this section shall be construed to affect existing law."  But "existing law" may be construed to refer 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.

8. Thus Senators Bacus, Tester, and Congressman Rehberg who voted Aye on December 15th, 2011, Bill of Rights Day, for NDAA 2011 have violated his Oath of Office to protect and defend the U.S. Constitution which guarantees all citizens the right to a jury trial "In all criminal prosecutions."

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."

Rep. Justin Amash warned the NDAA was“carefully crafted to mislead the public,”   The deceptions in the language of the NDAA, intended to allow defenders to argue that the provisions do not apply to American citizens, center around some of the wording in Sections 1021 and 1022.  Rep. Tom McClintock opposed the bill on the House floor and said in a speech:

[The NDAA] 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.


(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.”  Most worrisome, all accusations rest solely on the word of the government, with no witnesses, evidence, or any other form of due process available when the government is either wrong or lying.

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.


Facebook: "Recall Every Congressman Who Voted for the NDAA"

"Recalling Senators and Congressmen" (PDF)

"How to Recall US Senators and Congressmen"

This is Stewart Rhodes, Founder of Oath Keepers. I want to make it very clear that in Montana I will be filing for a recall of ALL of Montana's Congressional Delegation, including Republican Denny Rehberg, since all three of them voted for the NDAA of 2012, which contains provisions authorizing military detention and trial of US citizens and lawful residents.

The two Democratic Senators, Tester and Baucus, voted for it, but so did the Republican Congressman Rehberg. It's not about left or right. It's about our Bill of Rights.

Stewart Rhodes

Montana Oath Keepers and Oath Keepers national will lead this campaign to recall two Montana Senators and one Montana Representative who committed treason against the people of Montana and of America in voting for the NDAA of 2011.

Thank you, William Crain and Stewart Rhodes.


Elias Alias, president, Montana Oath Keepers, and member, Oath Keepers national Board of Directors

"the Constitution explicitly allows, by not disallowing . . . the states the power to recall US senators and congressmen:"

That's wingnut pseudo-law.  The fact is that a thing not asserted is not explicit.  Nor can it be simply assumed that a law allows anything one wants simply because the law doesn't expressly -- explicitly -- prohibit it. 

Constitutions are deliberately general; their provisions do not apply directly; they are implemented by means of statutes.

A statute is narrowly drawn in order to limit its scope to that to which it expressly applies, not to everything not prohibited thereby.

As for this ahistorical poppycock:

"Those who voted Aye on December 15th, 2011 . . . for NDAA 2011 have attempted to grant powers which cannot be granted, which violate both the spirit and the letter of . . . the Declaration of Independence."

1.  The "Declaration of Independence" has never been and is not now law.

2.  With the "Declaration," which was written in the Continental Congress, which was Founded by the Founders, the Founders declared independence from Great Britain.  They were not declaring independence from the colony gov'ts, which gov'ts had been established by, and were operated by, the Founders.

They did not declare independence from themselves.

In addition, the entire Constitution is in effect at the same time.  That means that at the same time one invokes the 10th Amendment -- which is not a blank slate to which every hairbrained anti-Supremacy Clause notion can be applied -- Art. I., S. 8., C. 15 is also in effect.  Because you likely haven't read the parts of the Constitution you don't like, you've probably not read that clause:

"The Congress shall have Power To provide for calling forth the Militia to execute (enforce) the Laws of the Union, (and) suppress Insurrections."

All in all, yours is in essence the "states' rights" view; which is the anti-Federalist view.  The anti-Federalists LOST the argument -- the Constitution was ratified despite their opposition -- so their views are null-and-void as concern law and Constitutional interpretation.  And also see Art. I., S. 10.

The Montana constitution does not apply to the Federal gov't.  And the Montana code, which statutory scheme implements the Montana constitution, does not apply to the Federal gov't. 

The following applies to state elected officials.  It need not prohibit application to Federal elected officials in order not to apply to Federal officials.

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."


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