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January 18, 2012
Responses to NDAA
Protesters march against Guantanamo and indefinite detainment Washington,DC, Jan 11, 2012 Photo by Andrew Courtney
1. Indefinite Detention of Citizens: A Response To Senator Carl Levin, by Jonathan Turley, jonathanturley.org, Jan 16, 2012
Yesterday, my column “10 Reasons The United States Is No Longer The Land Of The Free” ran in the Sunday Washington Post. I have been heartened by response to the column. However, a few commenters continue to suggest that the National Defense Authorization Act (NDAA) does not allow for the indefinite detention of citizens. This claim is being advanced by Senator Carl Levin (D., Mich.) in emails and fax messages to voters. I wanted to respond to Senator Levin’s points which are detached from language of the law and the clear intent of the majority of Senators. I would also like to address those who have stated that our liberties are not at risk when such powers will not affect most Americans.
I have previously explained why the claim by Sen. Levin is unfounded, as have others like the ACLU and commentators like Glenn Greenwald. The White House itself offered the spin to supporters in Congress, explaining why the President reneged on his pledge to veto the law. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the real section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial. Section 1031 only contains a meaningless provision stating “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”
First, this provision was added after an amendment to exempt citizens was defeated by the Senate — legislative history that any court is likely to note in the interpretation of its meaning.
Second, the fact that the Senate put a clear exemption in the mandatory detention provision for citizens but opted not to simply include the same provision in the discretionary detention provision reinforces this meaning.
Third, after the exemption for citizens was defeated overwhelmingly, the same Senators who voted to deny any exemption proceeded to vote for this language — clearly indicating that it did not offer such protection for citizens.
Fourth, Levin and others are seeking to deny the authority that the President just acknowledged in his signing statement. Obama stated “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He does not deny that he has such authority . . . only that he does not intend to use it.
Fifth, Levin admitted on the floor that it was the White House that insisted on eliminating the exemption for citizens — affirming that without such an exemption, citizens would be subject to such detention. In an exchange with Senator Udall, Levin stated:
Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?
Sixth, many of the members at the time of passage voiced their understanding that the provision authorized the indefinite detention of citizens – including those who wanted such a power codified and those who opposed the power. For example, At least Senator Lindsey Graham was honest when he said on the Senate floor that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
Seventh, the language that was ultimately put into the bill was standard cover language for Senators who knew that they would be criticized for voting for the law. Indeed, when Levin referred to the language, he insisted that it would merely permit what is already permitted by law “whatever it may be.” Of course, the White House has claimed the right to kill citizens on the president’s sole authority. The indefinite detention of citizens would seem the lesser included in such a greater. Moreover, the Senators refused to change the existing law by putting in an exemption for citizens. It is also worth noting that the White House has successfully opposed the right of citizens to present national security powers to federal courts for independent review. What is the “law” is often only the assertion of power by the President – unchecked by judicial review.
Levin has been hammered by civil libertarians and liberals over his role in passing this harmful law. His official Senate site now features a statement at the top. One of his financial supporters (who told me that he had declared that he will not to support Levin in the future due to the bill) sent me the following email from Levin’s office:
“The provisions on detention of terror suspects in the bill got more attention than all these other important priorities. The criticism of these provisions has usually been wildly inaccurate; if the bill did what some of its critics claim, I would have led the opposition. . . . It does not prohibit civilian trials for terror suspects. It does not strip the FBI and other civilian law enforcement agencies of their authority. It does not allow the military to make arrests on U.S. soil. It does not enact new authority to hold U.S. citizens without trial or charge. It does not provide for indefinite detention of citizens without access to civilian courts.”
Note the use of new authority. This is authority that has been claimed as being part of the President’s inherent authority — just as he claims the right to kill citizens. However, this law codifies new detention powers and the Senate expressly chose not to exempt citizens — and the President himself acknowledged the ability to indefinitely detain citizens in his pledge not to use it. Moreover, it was the duty of Levin and others to fight the passage of this law in the absence of an exemption, including fighting to use every power available from a filibuster to demanding a president veto. Instead, they took the political convenient approach and sought to excuse their act of constitutional nonfeasance behind this meaningless language.
I am hardly shocked that senators are not answering the criticism over this provision by being open about their failure to protect citizens. However, I continue to be amazed by comments on the Washington Post and this blog from citizens that we are not really losing any rights because most citizens are unlikely to be subject to these powers. It is disgraceful argument that only “those” people will be denied rights so I must remain free. Of course, since these are secret powers, you are not likely to know if you have been subject to surveillance or some other measures. More importantly, something is not a right if it is discretionary with your government to allow or to take away. By the time you find yourself denied of the right, it is too late to do anything about it. It is the same amoral logic described by pastor Martin Niemöller:
First they came for the communists,
and I didn’t speak out because I wasn’t a communist.
Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.
Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.
Then they came for the Catholics,
and I didn’t speak out because I was Protestant.
Then they came for me
and there was no one left to speak out for me.
Thankfully are we not facing the type of horror faced by Niemöller, but the logic is the same: I do not need to object unless the government denies me a right.
The government always embraces abusive power by targeting the least popular among us. The test of patriotism is to fight for the values that define us. While people appear ready to protest over taxes against “big government,” some of the people often seem to remain silent in the face of the very abuses that the Framers sought to combat from indefinite detention to warrantless searches to assassination. The play on security as a rationale to limit freedom is nothing new. As Benjamin Franklin observed, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
Professor, George Washington U., (Complete Bio)
2. Why I’m Suing Barack Obama, by Chris Hedges, truthdig.com, Jan. 16. 2012
Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint Friday in the Southern U.S. District Court in New York City on my behalf as a plaintiff against Barack Obama and Secretary of Defense Leon Panetta to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31.
The act authorizes the military in Title X, Subtitle D, entitled “Counter-Terrorism,” for the first time in more than 200 years, to carry out domestic policing. With this bill, which will take effect March 3, the military can indefinitely detain without trial any U.S. citizen deemed to be a terrorist or an accessory to terrorism. And suspects can be shipped by the military to our offshore penal colony in Guantanamo Bay and kept there until “the end of hostilities.” It is a catastrophic blow to civil liberties.
I spent many years in countries where the military had the power to arrest and detain citizens without charge. I have been in some of these jails. I have friends and colleagues who have “disappeared” into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.
Section 1031 of the bill defines a “covered person”—one subject to detention—as “a person who was a 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 such hostilities in aid of such enemy forces.”
The bill, however, does not define the terms “substantially supported,” “directly supported” or “associated forces.”
I met regularly with leaders of Hamas and Islamic Jihad in Gaza. I used to visit Palestine Liberation Organization leaders, including Yasser Arafat and Abu Jihad, in Tunis when they were branded international terrorists. I have spent time with the Revolutionary Guard in Iran and was in northern Iraq and southeastern Turkey with fighters from the Kurdistan Workers’ Party. All these entities were or are labeled as terrorist organizations by the U.S. government. What would this bill have meant if it had been in place when I and other Americans traveled in the 1980s with armed units of the Sandinistas in Nicaragua or the Farabundo Marti National Liberation Front guerrillas in El Salvador? What would it have meant for those of us who were with the southern insurgents during the civil war in Yemen or the rebels in the southern Sudan? I have had dinner more times than I can count with people whom this country brands as terrorists. But that does not make me one.
Once a group is deemed to be a terrorist organization, whether it is a Palestinian charity or an element of the Uighur independence movement, the military can under this bill pick up a U.S. citizen who supported charities associated with the group or unwittingly sent money or medical supplies to front groups. We have already seen the persecution and closure of Islamic charity organizations in the United States that supported the Palestinians. Now the members of these organizations can be treated like card-carrying “terrorists” and sent to Guantanamo.
But I suspect the real purpose of this bill is to thwart internal, domestic movements that threaten the corporate state. The definition of a terrorist is already so amorphous under the Patriot Act that there are probably a few million Americans who qualify to be investigated if not locked up. Consider the arcane criteria that can make you a suspect in our new military-corporate state. The Department of Justice considers you worth investigating if you are missing a few fingers, if you have weatherproof ammunition, if you own guns or if you have hoarded more than seven days of food in your house. Adding a few of the obstructionist tactics of the Occupy movement to this list would be a seamless process. On the whim of the military, a suspected “terrorist” who also happens to be a U.S. citizen can suffer extraordinary rendition—being kidnapped and then left to rot in one of our black sites “until the end of hostilities.” Since this is an endless war that will be a very long stay.
This demented “war on terror” is as undefined and vague as such a conflict is in any totalitarian state. Dissent is increasingly equated in this country with treason. Enemies supposedly lurk in every organization that does not chant the patriotic mantras provided to it by the state. And this bill feeds a mounting state paranoia. It expands our permanent war to every spot on the globe. It erases fundamental constitutional liberties. It means we can no longer use the word “democracy” to describe our political system.
The supine and gutless Democratic Party, which would have feigned outrage if George W. Bush had put this into law, appears willing, once again, to grant Obama a pass. But I won’t. What he has done is unforgivable, unconstitutional and exceedingly dangerous. The threat and reach of al-Qaida—which I spent a year covering for The New York Times in Europe and the Middle East—are marginal, despite the attacks of 9/11. The terrorist group poses no existential threat to the nation. It has been so disrupted and broken that it can barely function. Osama bin Laden was gunned down by commandos and his body dumped into the sea. Even the Pentagon says the organization is crippled. So why, a decade after the start of the so-called war on terror, do these draconian measures need to be implemented? Why do U.S. citizens now need to be specifically singled out for military detention and denial of due process when under the 2001 Authorization for Use of Military Force the president can apparently find the legal cover to serve as judge, jury and executioner to assassinate U.S. citizens, as he did in the killing of the cleric Anwar al-Awlaki in Yemen? Why is this bill necessary when the government routinely ignores our Fifth Amendment rights—“No person shall be deprived of life without due process of law”—as well as our First Amendment right of free speech? How much more power do they need to fight “terrorism”?
Fear is the psychological weapon of choice for totalitarian systems of power. Make the people afraid. Get them to surrender their rights in the name of national security. And then finish off the few who aren’t afraid enough. If this law is not revoked we will be no different from any sordid military dictatorship. Its implementation will be a huge leap forward for the corporate oligarchs who plan to continue to plunder the nation and use state and military security to cow the population into submission.
The oddest part of this legislation is that the FBI, the CIA, the director of national intelligence, the Pentagon and the attorney general didn’t support it. FBI Director Robert Mueller said he feared the bill would actually impede the bureau’s ability to investigate terrorism because it would be harder to win cooperation from suspects held by the military. “The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we’ve been fairly successful in gaining,” he told Congress.
But it passed anyway. And I suspect it passed because the corporations, seeing the unrest in the streets, knowing that things are about to get much worse, worrying that the Occupy movement will expand, do not trust the police to protect them. They want to be able to call in the Army. And now they can.
Journalist Chris Hedges Sues Obama Admin over Indefinite Detention of U.S. Citizens Approved in NDAA (video), Democracy Now, democracynow.org, Jan. 17, 2012
3. How Congress is Signing its own Arrest Warrants in the NDAA Citizen Arrest Bill, by Naomi Wolf, naomiwolf.org, Dec. 12, 2011
I never thought I would have to write this: but—incredibly—Congress has now passed the National Defense Appropriations Act, with Amendment 1031, which allows for the military detention of American citizens. The amendment is so loosely worded that any American citizen could be held without due process. The language of this bill can be read to assure Americans that they can challenge their detention — but most people do not realize what this means: at Guantanamo and in other military prisons, one’s lawyer’s calls are monitored, witnesses for one’s defense are not allowed to testify, and one can be forced into nudity and isolation. Incredibly, ninety-three Senators voted to support this bill and now most of Congress: a roster of names that will live in infamy in the history of our nation, and never be expunged from the dark column of the history books.
They may have supported this bill because—although it’s hard to believe—they think the military will only arrest active members of Al Qaida; or maybe, less naively, they believe that ‘at most’, low-level dissenting figures, activists, or troublesome protesters might be subjected to military arrest. But they are forgetting something critical: history shows that those who signed this bill will soon be subject to arrest themselves.
Our leaders appear to be supporting this bill thinking that they will always be what they are now, in the fading light of a once-great democracy — those civilian leaders who safely and securely sit in freedom and DIRECT the military. In inhabiting this bubble, which their own actions are about to destroy, they are cocooned by an arrogance of power, placing their own security in jeopardy by their own hands, and ignoring history and its inevitable laws. The moment this bill becomes law, though Congress is accustomed, in a weak democracy, to being the ones who direct and control the military, the power roles will reverse: Congress will no longer be directing and in charge of the military: rather, the military will be directing and in charge of individual Congressional leaders, as well as in charge of everyone else — as any Parliamentarian in any society who handed this power over to the military can attest.
Perhaps Congress assumes that it will always only be ‘they’ who are targeted for arrest and military detention: but sadly, Parliamentary leaders are the first to face pressure, threats, arrest and even violence when the military obtains to power to make civilian arrests and hold civilians in military facilities without due process. There is no exception to this rule. Just as I traveled the country four years ago warning against the introduction of torture and secret prisons – and confidently offering a hundred thousand dollar reward to anyone who could name a nation that allowed torture of the ‘other’ that did not eventually turn this abuse on its own citizens — (confident because I knew there was no such place) — so today I warn that one cannot name a nation that gave the military the power to make civilian arrests and hold citizens in military detention, that did not almost at once turn that power almost against members of that nation’s own political ruling class. This makes sense — the obverse sense of a democracy, in which power protects you; political power endangers you in a militarized police state: the more powerful a political leader is, the more can be gained in a militarized police state by pressuring, threatening or even arresting him or her.
Mussolini, who created the modern template for fascism, was a duly elected official when he started to direct paramilitary forces against Italian citizens: yes, he sent the Blackshirts to beat up journalists, editors, and union leaders; but where did these militarized groups appear most dramatically and terrifyingly, snapping at last the fragile hold of Italian democracy? In the halls of the Italian Parliament. Whom did they physically attack and intimidate? Mussolini’s former colleagues in Parliament — as they sat, just as our Congress is doing, peacefully deliberating and debating the laws. Whom did Hitler’s Brownshirts arrest in the first wave of mass arrests in 1933? Yes, journalists, union leaders and editors; but they also targeted local and regional political leaders and dragged them off to secret prisons and to torture that the rest of society had turned a blind eye to when it had been directed at the ‘other.’ Who was most at risk from assassination or arrest and torture, after show trials, in Stalin’s Russia? Yes, journalists, editors and dissidents: but also physically endangered, and often arrested by militarized police and tortured or worse, were senior members of the Politburo who had fallen out of favor.
Is this intimidation and arrest by the military a vestige of the past? Hardly. We forget in America that all over the world there are militarized societies in which shells of democracy are propped up — in which Parliament meets regularly and elections are held, but the generals are really in charge, just as the Egyptian military is proposing with upcoming elections and the Constitution itself. That is exactly what will take place if Congress gives the power of arrest and detention to the military: and in those societies if a given political leader does not please the generals, he or she is in physical danger or subjected to military arrest. Whom did John Perkins, author of Confessions of an Economic Hit Man, say he was directed to intimidate and threaten when he worked as a ‘jackal’, putting pressure on the leadership in authoritarian countries? Latin American parliamentarians who were in the position to decide the laws that affected the well-being of his corporate clients. Who is under house arrest by the military in Myanmar? The political leader of the opposition to the military junta. Malalai Joya is an Afghani parliamentarian who has run afoul of the military and has to sleep in a different venue every night — for her own safety. An on, and on, in police states — that is, countries with military detention of civilians — that America is about to join.
US Congresspeople and Senators may think that their power protects them from the treacherous wording of Amendments 1031 and 1032: but their arrogance is leading them to a blindness that is suicidal. The moment they sign this NDAA into law, history shows that they themselves and their staff are the most physically endangered by it. They will immediately become, not the masters of the great might of the United States military, but its subjects and even, if history is any guide — and every single outcome of ramping up police state powers, unfortunately, that I have warned for years that history points to, has come to pass — sadly but inevitably, its very first targets.
See websites and phone numbers of President and West Marin’s Representative and Senators on Action Alert page.
Senator Feinstein’s speech on her amendment 1126 (rejected).
Facebook page: Nationwide NDAA 2012 Congressional Protest
Friday, Feb 3, 2012, 12-7pm, at Congressional Offices throughout country