Tag: NDAA

This piece is my most viral piece to date and appeared on Daily Kos on December 15, 2011. It's an ironic diary coming from myself given all the economic pieces I write but I do have range on other issues, too. It's about the NDAA and is still relevant because the US can still indefinitely detain American citizens, and the White House has never been able to properly define the terms "associated forces" among others things with regard to Al Qaeda. Section 1021 can still be used to indefinitely detain American citizens.

You may recognize my illustration about the NDAA as well which is also still relevant.

Not that it should only be a worry if it happens to American citizens. This war on terror George W. Bush league crap that the Obama administration is still peddling, even with its signing statement claiming it won't matter while they are in the White House, assuming, of course, no Republican will ever win an election again. That is ridiculous, insulting, and a major assault on the Bill of Rights. This is further compounded with the White Paper and the Rand Paul filibuster in which he didn't get an answer to his simple question really on how they define the term "engaged in combat" when it comes to whether they can order a drone strike on an American citizen on American soil. This one is still relevant so enjoy.

Processing the President's Disdain for Due Process

That’s right. You know what’s going on.

This administration never threatened to veto the NDAA because of civil liberties concerns. This administration is using the same fear mongering that the Bush administration has used concerning Al Qaeda to codify the unchecked executive power it has claimed erroneously for itself in the exact same way.

How much has President Obama told us about his ability to kill Americans at home?  

The question is pretty simple. The answer might not be that simple but it is an answer that is deserved by the American people, no matter how laborious it is to explain that answer clearly.

How much has President Obama himself told Americans about his claimed ability to target, detain and assassinate us?  For years, we were given no answers that I know of.

We, the public, have gotten access to a white paper (PDF), not the actual legal memos, and that was leaked by a journalist, Michael Isikoff.

Some senators on the Senate Intelligence Committee (SSCI) have now received several legal memos after they threatened to filibuster some of his nominees.   There are, we believe, eleven in total.  The president released two more memos for the SSCI to review.  They are not allowed to show them to their staff or make any record of them.  The review period is temporary. The public has not been given any access to them, even though, as we now know, the president, through his attorney general, told us that the president does assume the power to kill us, even at home.  But he still dodged the direct question that has been asked of him by both citizens (in a Google+ hangout session), by a formal letter from Senator Rand Paul, and by many others.  Holder gave some information, but left the question still very much up in the air.

Conor Friedersdorf, a staff writer at The Atlantic, says that Holder’s recent response is “non-responsive, evasive, and deliberately manipulative”.  I agree.  Significant pressure needs to be applied by all concerned Americans until we understand clearly what power this president has assumed, what kinds of things might get us killed, or what circumstances might put us in close proximity to someone else they might target for assassination.  Many innocent civilians have been killed overseas by this president because they were somehow associated, intentionally or not intentionally, with the target of a drone or cruise missile strike.

Pulitzer Prize winning journalist and Truthdig columnist, Chis Hedges, along with six other journalists and activists filed a lawsuit against the Obama administration  over Section 1021 of the National Defense Authorization Act (NDAA) alleging that it violated free speech and associational rights guaranteed by the First Amendment and due process rights guaranteed by the Fifth Amendment of the United States Constitution. Last Wednesday they were back in Federal Court in Manhattan for a hearing before three judges:

Attorney Bruce Afran, addressing press and gathered activists in an icy downtown Manhattan plaza Wednesday, said the three-judge panel today challenged the government to prove that the NDAA provision is nothing more than an “affirmation” of the laws regarding indefinite detention already established by Authorization for Use of Military Force. According to the DoJ, the NDAA provision is nothing new, but simply a codification of AUMF. The plaintiffs and their supporters vehemently disagree, as did Judge Forrest last year. Afran stressed again Sunday that 1021(b)(2) “broadens the power of the military” when it comes to the capture and indefinite detention of U.S. citizens and as such “breaches the constitutional barrier between civilians and the military” and constitutes a significant extension of the military state beyond the powers given by AUMF.

Mr. Hedges explains the consequences for the nation and the democratic state should they lose this case:

If we lose in Hedges v. Obama – and it seems certain that no matter the outcome of the appeal this case will reach the Supreme Court – electoral politics and our rights as citizens will be as empty as those of Nero’s Rome. If we lose, the power of the military to detain citizens, strip them of due process and hold them indefinitely in military prisons will become a terrifying reality. Democrat or Republican. Occupy activist or libertarian. Socialist or tea party stalwart. It does not matter. This is not a partisan fight. Once the state seizes this unchecked power, it will inevitably create a secret, lawless world of indiscriminate violence, terror and gulags. I lived under several military dictatorships during the two decades I was a foreign correspondent. I know the beast. [..]

Five thousand years of human civilization has left behind innumerable ruins to remind us that the grand structures and complex societies we build, and foolishly venerate as immortal, crumble into dust. It is the descent that matters now. If the corporate state is handed the tools, as under Section 1021(b)(2) of the NDAA, to use deadly force and military power to criminalize dissent, then our decline will be one of repression, blood and suffering. No one, not least our corporate overlords, believes that our material conditions will improve with the impending collapse of globalization, the steady deterioration of the global economy, the decline of natural resources and the looming catastrophes of climate change.

But the global corporatists-who have created a new species of totalitarianism-demand, during our decay, total power to extract the last vestiges of profit from a degraded ecosystem and disempowered citizenry. The looming dystopia is visible in the skies of blighted postindustrial cities such as Flint, Mich., where drones circle like mechanical vultures. And in an era where the executive branch can draw up secret kill lists that include U.S. citizens, it would be naive to believe these domestic drones will remain unarmed. [..]

After the hearing, Mr Hedges, along with three of his co-plaintiffs, Pentagon Papers whistle-blower Daniel Ellsberg; Revolution Truth Executive Director Tangerine Bolen; journalist and U.S Day of Rage founder Alexa O’Brien; and Demand Progress Executive Director David Segal, and their attorneys, Carl Mayer and Bruce Afran, sat down to discuss the state of the lawsuit. The discussion was moderated by Natasha Lennard of Salon and Matt Sledge of The Huffington Post.

In a second panel to “discuss the broader context of the case,” Mr. Hedges, Mr. Ellsberg and Ms. Bolen were joined by film maker and activist Michael Moore, NSA whistle-blower Thomas Drake and Jesselyn Radack, an attorney for CIA whistle-blower John Kiriakou and a director of the Government Accountability Project.

In May of 2011, Pulitzer prize winning author, Chris Hedges and several other prominent activists and politicians filed a lawsuit against the Obama administration  over Section 1021 of the National Defense Authorization Act (NDAA) alleging that it violated free speech and associational rights guaranteed by the First Amendment and due process rights guaranteed by the Fifth Amendment of the United States Constitution.

Hedges asserted that section 1021 (pdf) of the bill, which authorized indefinite military detention for “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,” left him, as a working journalist, vulnerable to indefinite detention because neither Congress nor the president defined the terms “substantial support,” “associated forces” or “directly supported.” [Emphasis added.]

In a landmark ruling last September, Judge Katherine Forrest of the Southern District of New York struck down the indefinite detention provision, saying it likely violates the First and Fifth Amendments of U.S. citizens. The Obama administration appealed. The arguments for that appeal will be heard today, Wednesday, February 6.

One of the seven plaintiffs, Pentagon Papers whistleblower, Daniel Ellsberg joined Amy Goodman and Nermeen Shaikh on Democracy Now! to discuss the case.

Shortly after President Barack Obama signed the National Defense Authorization Act on December 21, 2011 a group of journalists and activist joined Pulitzer Prize-winning war correspondent Chris Hedges in a lawsuit against the Obama administration asserting that the law violated free speech and associational rights guaranteed by the First Amendment and due process rights guaranteed by the Fifth Amendment of the United States Constitution. In September U.S. District Judge Katherine Forrest had blocked the disputed statute from the National Defense Authorization Act, essentially declaring it unconstitutional. That ruling was overturned in October by a three-judge panel of the 2nd U.S. Circuit Court of Appeals. It is worth noting that all of those judges were appointed by Barack Obama.

But who would have thought that Hedges and company would have an ally  in Senators Rand Paul (R-KY) and Dianne Feinstein (D-CA) who along with several other senators from both sides of the aisle, filed an amendment to the current military spending bill that would bar detentions of citizens and green card-holders:

Sen. Dianne Feinstein (D-Calif.), who helped write that amendment, declared Wednesday that it is not good enough, and recalled seeing Japanese Americans jailed in horse stalls at a racetrack when she was a girl.

“I believe that the time has come now to end this legal ambiguity, and state clearly, once and for all, that the AUMF or other authorities do not authorize such indefinite detention of Americans apprehended in the U.S.,” Feinstein said.

“The federal government experimented with indefinite detention of U.S. citizens during World War II, a mistake we now recognize as a betrayal of our core values,” she said. “Let’s not repeat it.” [..]

Paul, who adheres to many libertarian positions, noted that the federal government’s “fusion centers” — which are supposed to facilitate the flow of anti-terrorism information — already make recommendations that many people would find objectionable, and if carried to their logical conclusions, could provide basis for jailing just about anyone.

Paul pointed to a report from a center in Missouri: “From this fusion center comes a document that says beware of people who have bumper stickers supporting third party candidates,” Paul said. “Beware of people who believe in stricter immigration laws. Beware of people who support the right to life. They might be terrorists.

“This is an official document,” paul added. “Do we want to give up the right to trial by jury when we’re being told that somebody who keeps food in their basement might be a terrorist?”

The problem that many opponents of the indefinite detention provisions see with it is that it is especially vague, saying only that the military can grab anyone who provides “substantial support” to Al Qaeda or “associated forces.” Those terms are not defined by the law, which is being challenged in the federal courts.

Although President Obama signed the bill he had promised that he would never use it who is to say that he won’t change his mind or another president will use it to silence dissent. Considering the number of promises this president has already broken and his close friendship with Cass Sunstein, who would love nothing more that to criminalize decent, the senate needs to approve this amendment to protect the our constitutional rights.

Yes, anything can happen, but with the latest open disdain for 47% of the people in this country by Mitt Romney, it’s looking like a safe bet that the President will be reelected. There’s also more time for Romney to say even more stupid shit. It’s almost like he’s running against himself, so I’m looking past the President”s very likely reelection onto life or death issues.

In this introspection I sadly conclude that there is just not enough differences in this campaign when to comes to the wars and the national security state; none of them will consider rolling it back even though that is what will ultimately make us safer. Destroying the 4th amendment did not make us safer one bit.

What makes us even less safe is the hate bred through what is called the collateral death of innocent civilians that we in this country and our horse race mindset can’t seem to understand. This is not something human beings just get over and why should they? Who are we to tell them to get over it? They literally can’t get over it, and this war is spilling blood in our name as jpmassar outlined the other day in his extremely important diary.

I Know You Don’t Want to Hear It, But We Have Blood On Our Hands. 8 Women Just Killed in Afghanistan

How many times must the cannonballs fly

Before they are forever banned?

“...precision aerial munitions… as well as precision fire from aircraft…”

At least eight women have died in a Nato air strike in Afghanistan’s eastern province of Laghman, local officials say. Nato has conceded that between five and eight civilians died as it targeted insurgents, and offered condolences.

The “Good Guys” won one.

Back in January of this year Chris Hedges, Pulitzer Prize-winning war correspondent Chris Hedges, became the lead complainant in a law suit against the Obama administration after President Obama signed the National Defense Authorization Act on December 21, 2011:

Hedges asserted that section 1021 (pdf) of the bill, which authorized indefinite military detention for “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,” left him, as a working journalist, vulnerable to indefinite detention because neither Congress nor the president defined the terms “substantial support,” “associated forces” or “directly supported.” [Emphasis added.]

After several hearings on the whether or not the plaintiffs had standing,on May 16, US District Court Judge for the Southern District of New York Katherine B. Forrest issued a preliminary injunction enjoining the enforcement of 1021. On September 12, Judge Forrest made that injunction permanent

Wednesday’s 112-page opinion turns the temporary injunction of May into a permanent injunction. The United States appealed on August 6.

The permanent injunction prevents the U.S. government from enforcing a portion of Section 1021 of the National Defense Authorization Act’s “Homeland Battlefield” provisions. [..]

“This court does not disagree with the principle that the president has primacy in foreign affairs,” the judge said, but that she was not convinced by government arguments.

“The government has not stated that such conduct – which, by analogy, covers any writing, journalistic and associational activities that involve al Qaeda, the Taliban or whomever is deemed “associated forces” – does not fall within § 1021(b)(2).”

This ruling of course will be appealed. In the meantime, journalists, reporters, humanitarian aid workers are still protected by the Constitution. We owe a hearty “thank you” to Judge Forrest for not abdicating her judicial responsibilities. But most of all the Chris Hedges and the other six members of the “Freedom 7“: Pentagon Papers journalist Daniel Ellsberg; author Noam Chomsky; Icelandic parliamentarian Birgitta Jonsdottir; Occupy London activist Kai Wargalla; activist Alexa O’Brien, who believes she lost her day job because of McCarthyite suggestions her work with Occupy Wall Street/Day of Rage was somehow connected to Islamic radicals; and Jennifer “Tangerine” Bolen is the founder and Executive Director of RevolutionTruth.

Earlier this year Pulitzer prize winning author, Chris Hedges and several other prominent activists and politicians filed a lawsuit against the Obama administration  over Section 1021 of the National Defense Authorization Act (NDAA) alleging that it violated free speech and associational rights guaranteed by the First Amendment and due process rights guaranteed by the Fifth Amendment of the United States Constitution. The Obama DOJ argued that the group had no standing to bring the suit since they had been harmed. Federal Judge  Katherine Forrest of the Southern District of New York saw it differently in her ruling (pdf)on May 16 when she issued a preliminary injunction enjoining enforcement of the highly controversial indefinite provisions of NDAA, Sections 1021 and 1022. The final hearings were held last week on whether the injunction enjoining enforcement of 1021 will be permanent.

From Chris Hedges on Criminalizing Dissent:

[..] Any activist or dissident, whose rights were once protected under the First Amendment, can be threatened under this law with indefinite incarceration in military prisons, including our offshore penal colonies. The very name of the law itself-the Homeland Battlefield Bill-suggests the totalitarian credo of endless war waged against enemies within “the homeland” as well as those abroad. [..]

Barack Obama’s administration has appealed Judge Forrest’s temporary injunction and would certainly appeal a permanent injunction. It is a stunning admission by this president that he will do nothing to protect our constitutional rights. The administration’s added failure to restore habeas corpus, its use of the Espionage Act six times to silence government whistle-blowers, its support of the FISA Amendment Act-which permits warrantless wiretapping, monitoring and eavesdropping on U.S. citizens-and its ordering of the assassination of U.S. citizens under the 2001 Authorization to Use Military Force, or AUMF, is a signal that for all his rhetoric, Obama, like his Republican rivals, is determined to remove every impediment to the unchecked power of the security and surveillance state. [..]

The language of the bill is terrifyingly vague. It 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.” In defiance of more than 200 earlier laws of domestic policing, this act holds that any member of a group deemed by the state to be a terrorist organization, whether it is a Palestinian charity or a Black Bloc anarchist unit, can be seized and held by the military. Mayer stressed this point in the court Wednesday when he cited the sedition convictions of peace activists during World War I who distributed leaflets calling to end the war by halting the manufacturing of munitions. Mayer quoted Justice Oliver Wendell Holmes’ dissenting 1919 opinion. We need to “be eternally vigilant against attempts to check the expression of opinions that we loathe,” the justice wrote. [..]

The Justice Department’s definition of a potential terrorism suspect under the Patriot Act is already extremely broad. It includes anyone with missing fingers, someone who has weatherproof ammunition and guns, and anyone who has hoarded more than seven days of food. [..]

Contrast this crucial debate in a federal court with the empty campaign rhetoric and chatter that saturate the airwaves. The cant of our political theater, the ridiculous obsessions over vice presidential picks or celebrity gossip that dominate the news industry, effectively masks the march toward corporate totalitarianism. The corporate state has convinced the masses, in essence, to clamor for their own enslavement. There is, in reality, no daylight between Mitt Romney and Obama about the inner workings of the corporate state. They each support this section within the NDAA and the widespread extinguishing of civil liberties. They each will continue to funnel hundreds of billions of wasted dollars to defense contractors, intelligence agencies and the military. They each intend to let Wall Street loot the U.S. Treasury with impunity. Neither will lift a finger to help the long-term unemployed and underemployed, those losing their homes to foreclosures or bank repossessions, those filing for bankruptcy because of medical bills or college students burdened by crippling debt. Listen to the anguished cries of partisans on either side of the election divide and you would think this was a battle between the forces of light and the forces of darkness. You would think voting in the rigged political theater of the corporate state actually makes a difference. The charade of junk politics is there not to offer a choice but to divert the crowd while our corporate masters move relentlessly forward, unimpeded by either party, to turn all dissent into a crime.

Not that there is any solace in the argument of voting for Obama to protect the Supreme Court from more corporatist right wing appointments, when Pres. Obama has his good friend and mentor Cass Sunstein waiting in the wings, salivating to further gut and criminalize dissent.

But thank you, Judge Forrest.

 The National Defense Authorization Act passed the House  a vote of 299 – 110. It passed without the bipartisan amendment that was proposed by Reps. Adam Smith (D-Wash.) and Justin Amash (R-Mich.)  which would have prohibited indefinite detention without due process . It failed by a vote of 243 – 173.  House Republicans piled on the fear factor with accusations that the amendment and its supporters were “soft on terrorist”. Adam Serwer recounts in his article in Mother Jones how Smith and Amash were accused of having “[collaborated on a nefarious plot to undermine national security”:

“Rep. Tom Rooney (R-Fla.) accused the lawmakers of wanting to “coddle terrorists,” while Rep. Mac Thornberry (R-Tex.) warned that under an amendment they’d introduced, “as soon as a member of Al Qaeda sets foot on US soil, they hear you have the right to remain silent.” National Review’s Andrew C. McCarthy, a former federal prosecutor who has never heard of a same-sex marriage supporting, pro-financial regulation liberal who wasn’t secretly a member of the Muslim Brotherhood, wrote that their proposal was the result of “libertarian extremists” teaming up with liberals with an “obsession” with giving “more rights” to “mass murderers.” ”

We now know that there are 231 paranoid delusion Republicans in the House that no longer believe in the rule of law or the Constitution of the United States:

“As Smith pointed out during yesterday’s floor debate, the Fifth Amendment says no “person” shall be deprived of liberty without due process of law. It doesn’t say “citizen,” and the text of the Constitution uses both words enough that it’s clear the framers understood the difference. “Your beef is with James Madison,” Smith told Thornberry on Thursday. So keep in mind, when Republicans like Rooney say that Smith and Amash want to “coddle terrorists,” they’re not necessarily talking about some heavily armed Al Qaeda fighter in Kandahar. They’re potentially talking about you.”

Besides passing without the Smith/Amash amendment, the $642 billion bill breaks a deficit-cutting deal with President Barack Obama and restricts his authority in an election-year challenge to the Democratic commander in chief. The bill also calls for construction of a missile defense site on the East Coast that the military opposes, and bars reductions in the nation’s nuclear arsenal. Against the request of the Chamber of Commerce and business community, strong GOP allies, the Republicans passed an amendment limiting funds for institutions or organizations established by the U.N. Convention on the Law of the Sea:

“The chamber supports Senate ratification of the Law of the Sea Treaty “because it would provide clear legal rights and protections to American businesses to transit, lay undersea cables, and take advantage of the vast natural resources in and under the oceans off the U.S. coasts and around the world,” executive vice president R. Bruce Josten said in a statement. He noted that the Defense Department supports the treaty.

Tea party Republicans and other conservatives have expressed concerns about the treaty impinging on U.S. sovereignty.”

President Obama has threatened to veto this bill, not for the lack of the restriction on indefinite detention but mainly because of restrictions on the implementation of the New START treaty; limits on reductions for the U.S.’s nuclear arsenal; and new restrictions on the transfer of Guantanamo detainees. Moreover, the White House objected to the overall size of the bill, which surpasses President Obama’s request by $3.7 billion and exceeds the Budget Control Act spending caps by $8 billion. I’ll believe that when it happens.

In New York City, U.S. District Judge Katherine Forrest ruled that the indefinite detention provision of the National Defense Authorization Act (NDAA) is unconstitutional in violation of the First and Fifth Amendments. The NDAA was signed into law by President Obama in late December after a veto threat over language that was eventually changed at his request.

In a 68-page ruling blocking this statute, U.S. District Judge Katherine Forrest agreed that the statute failed to “pass constitutional muster” because its broad language could be used to quash political dissent.

    “There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

This puts a whole new spin on today’s debate in the House floor Thursday of an amendment to the NDAA proposed by Representatives Adam Smith (D-Wash.) and Justin Amash (R-Mich.), that would undo the detention provisions and bar military detention for any terror suspects captured on U.S. soil. The ruling was made in response to a law suit brought by former New York Times war correspondent and Pulitzer Prize winner, Chris Hedges and others who argued that the law would have a “chilling effect” on their work:

Hedges was joined in the suit by linguist, author and dissident Noam Chomsky, Pentagon whistle-blower Daniel Ellsberg and other high-profile activists, scholars and politicians.

Hedges argued in his testimony that his work as a journalist would bring him into contact with terrorist organizations that would, given the scope of the law, qualify him for indefinite detention. The plaintiffs argued that the threat of detention alone would be an unconstitutional encroachment on their First Amendment rights to free expression and association, as well as a violation of the Fifth Amendment right to due process.

As Glen Greenwald points out in his Salon article, the court rejected the argument by the government that the NDAA did nothing more than the 2001 AUMF already did and thus did not really expand the Government’s power of indefinite detention:

The court cited three reasons why the NDAA clearly expands the Government’s detention power over the 2001 AUMF (all of which I previously cited when denouncing this bill).

First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.”

Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.”

Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.

The court also decisively rejected the argument that President Obama’s signing statement – expressing limits on how he intends to exercise the NDAA’s detention powers – solves any of these problems. That’s because, said the court, the signing statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.”

(emphasis mine)

A word of caution, we shouldn’t celebrate victory just yet. This is a preliminary injunction issued by one judge and the government will surely appeal it the Circuit Court.

The debate in the House on the amendment to the NDAA introduced by House Armed Services ranking member Adam Smith (D-Wash.) and Rep. Justin Amash (R-Mich.) that would undo the detention provisions and bar military detention for any terror suspects captured on U.S. soil, will go on this afternoon. The amendment has strong bipartisan support in the House. We still need to take action and write our Representatives to vote for this amendment.