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Indefinite Detention: NDAA for Fiscal Year 2012

December 21st, 2011 in Journalism by

Originally published in the Dec. 22nd edition of the Long Island Press

Every policy in Washington is developed over time and influenced by myriad factors. Even singular foreign policy events such as the Monroe Doctrine or declarations of war are the culmination of assiduous planning and debate that take into account a progression of economic, national security and human factors. Because every policy is based upon building blocks of understanding relative to the time and circumstances in which they were developed, there is always a reason why even the most divisive or treacherous idea gains support, for better or for worse.

Such is the case with section 1031 of the National Defense Authorization Act for fiscal year 2012 (NDAA), a provision commonly referred to as the “indefinite detention” clause. The NDAA itself has already passed both houses of Congress and currently awaits President Obama’s signature. The detention provision has garnered a great deal of attention from the blogosphere and advocacy groups such as the American Civil Liberties Union (ACLU) as it marks a decidedly dangerous shift in procedure and rights with respect to detainees in the War on Terror. The section, authored by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.), gives the military the ability to indefinitely detain anyone it deems to be connected to the War on Terror, thus superseding the authority of civilian courts.

The NDAA itself is a fairly routine bill that organizes funding for the military. It does not appropriate funding, which is important to understand. The original language in the 1031 amendment was troublesome enough to prompt a strong rebuke from several members of Congress and the President who threatened to veto the bill if it included this measure as written.

The revised measure attempts to codify the language with respect to detainees and assuage the fears of those who viewed this as undermining our Constitutional rights and a threat to the democratic process. The reason is that the original language was vague enough that the possibility of detaining U.S. citizens and legal aliens indefinitely without due process was left open to interpretation.

The language was “clarified” by referring specifically instead to al-Qaeda and its affiliates and exactly who has the ability to authorize detention should a person be suspected of having ties to a terrorist organization. In an attempt to calm the waters surrounding this amendment Sen. McCain—ironically the most notable former detainee in the U.S.—issued a statement saying, “the language in this bill will not affect any Americans engaging in the pursuits of their Constitutional rights.” The ACLU begs to differ.

On its website the ACLU specifically tackles the revised provision with the following: “Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.” They go on to quote Sen. Lindsey Graham (R-S.C.), who said section 1031 “does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Inside the Beltway there has been great consternation over this provision. Sen. Mark Udall (D-Colo.) put forward an amendment to water down the McCain/Levin provision (S.Amdt. 1107: To revise the provisions relating to detainee… to S. 1867) but it was voted down 61 to 37 in the Senate (the two senators from Alaska did not vote). Even FBI Director Robert Mueller has expressed concern that this language will inevitably lead to confusion in the field as to who has superseding authority during a terror investigation. The thought of the military being able to access and interrupt a civilian terror investigation and round up suspects unilaterally is a threat to every level of U.S. law enforcement. The fact that it potentially extends to American citizens, despite Sen. McCain’s claims to the contrary, speaks to the ambiguity of even the final language.

At first it seemed as though President Obama balked at this provision out of his understanding of the impact on American civil liberties and Constitutional rights; that the POTUS was back on message from his campaign and defending personal freedom. As it turns out, this couldn’t be further from reality. Incredibly, the White House reversed its stance and withdrew its opposition to the bill after the language was changed to include a stipulation that granted exclusive authority to arbitrate the detention provision away from the Secretary of Defense and directly to the president. In effect, Obama simply consolidated detainee power and privilege into the office of the president.

It’s important also to remember that this bill is not an appropriations bill. Unlike other spending bills that have been in the news this year that require passage to prevent certain government agencies from running out of funds, the NDAA does not fund the Pentagon, it organizes its expenditures and establishes certain rules and provisions. Therefore, nothing would theoretically be interrupted if this bill doesn’t pass. In other words, the POTUS has little to lose in fighting this provision. Instead, he caved. Again.

The question is: Why should this concern Americans? Remember that policy doesn’t develop in a vacuum. Sections 1031 and 1032 don’t stand on their own. When taken in conjunction with the Patriot Act and the government’s decision in 2009 to extend three controversial provisions that include granting the government the ability to collect information and conduct wire tapping and surveillance in secret without obtaining warrants, the detainee provision gets a little alarming. Add to this the extension of the “lone wolf” provision of the Patriot Act, which allows the government to track anyone around the world regardless of their affiliation, and things become even more ominous.

Again, each of these provisions has theoretical and practical merit, particularly when considered within the post 9-11 context in which they were established. Taken together, however, and the dangerous crack in the defense of our civil liberties begins to grow.

Take, for example, the case of Tarek Mehanna of Massachusetts. Mehanna, it would seem, despises America. He even went so far as to seek Jihadist training abroad though he was rebuffed. Today he is being prosecuted, not just for attempting to join a jihadist organization, but also for promoting jihadist material online. A recent Mother Jones article links the Mehanna case to the killing of “Anwar al-Awlaki, a radical U.S.-born Imam whose ability to give sermons in colloquial English made him the symbol of a new era of homegrown extremism.” Most of us harbor little sympathy for either of these men, but the government’s response and action toward both in conjunction with the steady erosion of civil liberties under the Patriot Act and the indefinite detention clause of the NDAA speak to the steady rise in domestic militarization.

When the courts are no longer responsible for trying its citizens and the president is given the exclusive right to arbitrate in cases the military deems to be matters of national security, we have already descended far down the slippery slope toward fascism. This is not hyperbole but rather a strict interpretation of fascism as an ideology that revokes individual rights under the cloak of nationalism and consolidates domestic tribunal authority under the military controlled by a singular authority.

There are two reasons most Americans care little about the debate surrounding the detention provision. One is that most people are law-abiding Americans to whom criticizing America and promoting terrorist speech is anathema. That’s a good thing. The other is that most people probably haven’t even heard of it because the debate, while raging behind closed doors in Congress and inside the blogosphere, is largely absent in the traditional media. The only plausible explanations for this omission are either that corporate media outlets don’t think it’s important or they are afraid of the potential consequences to their coverage.

Let’s assume that the issue of whether the military should be allowed to supersede an FBI investigation of U.S. citizens and indefinitely detain suspects without evidence or the requirement to divulge any of its actions is important to all of us and examine the latter. What could traditional news outlets be concerned about? Take everything covered to this point and consider the following scenario:

A credible journalist reporting on the Mehanna case would need to cite the remarks Mehanna posted on the Internet that prompted authorities to investigate him and consider him an imminent threat. This same journalist would now be technically guilty of exactly the same crime as Mehanna if he is convicted on this count and U.S. law establishes the precedent that reporting jihadist sentiments is an act of terrorism. This would be treasonous behavior calling into question the strength and breadth of the First Amendment. Theoretically the government can not only begin surveillance and wire-tapping on the journalist, the military can decide to intervene and indefinitely detain this person without due process.

Think it can’t happen? Well, technically it can because this entire scenario would be legal in the eyes of the government under the strictest interpretation of the new law. Of course it can happen. This is McCarthyism minus the hearings and histrionics of Sen. Joseph McCarthy. It was during the McCarthy years that indefinite detention was first contemplated and even briefly enacted, though it was never officially implemented or acted upon. For as long as that journalist/blogger/activist/whomever can be considered a “Lone Wolf” or perhaps linked to affiliates of al-Qaeda—an organization that is by nature indefinable—his or her constitutional rights as a citizen can be suspended. The War on Terror as conceived by George W. Bush and codified domestically under the Patriot Act, is an active and permanent war in the spirit and definition of the Cold War. If the Bush Doctrine allowed the U.S. to wage war on nations without provocation, then the McCain/Levin provision brings the doctrine home.

The moment Obama affixes his signature to the bill will mark a seminal shift in our democracy. It will also mark the tragic moment that the Obama presidency becomes indistinguishable from the Bush Administration.

 

Main photo: AP - A June file photo of the sun rising over Camp Delta detention compound at Guantanamo Bay U.S. Naval Base, in Cuba.

Below right: AP file photo of Robert Mueller. Below Left: AP file photo of Tarek Mehanna

Author: Jed Morey

Jed Morey is the publisher of the Long Island Press, LI's Cultural Arts and Investigative News Journal. The Press has a monthly circulation of 100,000, and www.longislandpress.com, welcomes more than 500,000 unique visitors every month. He serves on the board of the Holocaust Memorial and Tolerance Center in Nassau County, as well as the President's Council of Big Brothers and Big Sisters of Long Island. In addition to the contributions on this blog, Morey authors a column for the Long Island Press titled "Off The Reservation" and is a staunch advocate for Indian rights. The column was voted Best Column in New York by the NY Press Association in 2010 and third overall in the nation among alternative publications by the Association of Alternative Weeklies in 2012. Morey lives in Glen Cove with his wife, Eden White, and their two daughters.

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5 Comments

Terri Scofield

January 1st, 2012

“In Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.”

– by Martin Niemöller, prominent German anti-Nazi theologian and Lutheran pastor

Jed Morey

January 2nd, 2012

This bill was signed on New Year’s Eve by the President. One has to refer to John Adam’s administration to reference the last time the office of the President acquired this level of military authority over domestic affairs. Every year since 9/11 we have seen our rights marginalized in ways that Joseph McCarthy and J.E. Hoover would have salivated over. Yet history is once again ignored in the pursuit of power during the age of unreason.
In other news, American Idol is back.
And so it goes.

Frank Castle

January 8th, 2012

Another well-within-your-journalistic-capabilities article. Now, how to you get the unwashed masses to read it and follow you as you charge the ramparts with cannon blazing?

Run for office Jed, you’re free paper is never going to save our (your and my) America.

I’d follow you into hell and carry your battle flag, but only if you’re serious.

Live Free and Die « Jed Morey

January 12th, 2012

[...] curious case of candidate Barack Obama, self-proclaimed expert on the Constitution who signed the National Defense Authorization Act for 2012 on New Year’s Eve, which includes the controversial indefinite detention provision that has [...]

Rwolf

September 20th, 2012

COMING NDAA Hell for Americans’ Civil Liberties?

Americans deemed by President Obama as Belligerent are vulnerable to Arrest and Indefinite Detention under the passed NDAA, National Defense Authorization Act.

Late Monday 9-17-12 the Obama Administration was able to get Court of Appeals Judge (Raymond Lohier) for the Second Circuit to reauthorize the White House’s ability under (NDAA) The National Defense Authorization Act of 2012 to (indefinitely detain American citizens) without charge or due process. Second Circuit Judge (Raymond Lohier) placed on hold Judge Katherine Forest’s permanent injunction that recently blocked Pres. Obama’s enforcement of NDAA Indefinite Detention provisions until 9-28-12 when a three-judge appeals court panel is expected to take up the issue. Prior the Obama administration stated to Judge Katherine Forest under NDAA the President had authorization to lock up belligerents indefinitely. That they (were justified) to lock belligerents up indefinitely—because cases involving belligerents directly-aligned with militants against the good of America—warrants such punishment.) Pres. Obama could use NDAA provisions unblocked 9-17-12 by Judge (Raymond Lohier) for the Second Circuit to order U.S. Military Forces to round up without evidence, millions of Americans alleging they are belligerents or threat to National Security. Many observers fear Obama intends to extend NDAA, imprison U.S. Citizens in Indefinite Detention not involved with or associated with enemy forces.

Hitler included similar provisions in his fascist (Discriminatory Decrees signed February 28, 1933). Immediately after German Parliament passed Hitler’s laws, the Reich Government ordered the arrest of German Citizens without probable cause or evidence; delegated power to German Police and other authorities to arrest anyone Nazi authorities claimed attempted or incited public unrest: arrested among others were outspoken Germans, writers, journalists, peaceful protestors and artists. After World War II the East German Secret Police (Stasi) used the threat of Indefinite Detention to forcibly recruit thousands of informants.

The U.S. 2012 NDAA legislation Obama signed 12-31-11 is similar to Hitler’s 1933 fascist laws the SS and Gestapo used to target persons in Germany for arrest, imprisonment and execution without probable cause; and confiscate millions of dollars of property. Hitler used his laws to suspend Parliament insuring his laws could not be rescinded.

During the Obama Administration’s recent request for a (stay) to stop U.S. District Judge Katherine Forrest blocking enforcement of vague NDAA provisions, the Federal Government—never clarified what constitutes a (belligerent); or militant; or what belligerent activities (directly aligned with a militant) to order a belligerent’s arrest or indefinite detention; or what is against the good of America. Under NDAA, the U.S. Government or President could claim anyone was (directly aligned with militants) e.g. any political or other association; charge any activity, statement, writing or communication was (directly aligned) with an individual or group the government deemed (militant) to arrest and indefinitely detain Americans. Writers, journalists, Americans that disagree with or question U.S. Government or its allies—may under NDAA be subject to arrest and indefinite detention.

The 2012 and not yet passed 2013 NDAA, like Hitler’s 1933 Discriminatory Decrees allow forced government censorship; warrant-less searches of private property and forfeiture of property from persons not charged with crime. Provisions in 2012 NDAA keep the door open for corrupt U.S. police; government agents and provocateurs which there are many, to falsify reports and statements to target any American, group or organization for arrest, indefinite detention, complete disappearance; civil asset forfeiture of their property.

You may have noted NDAA referred to the USA Patriot Act. Under the Patriot Act, lending itself to Government / police corruption, the Federal Government may use secret witnesses and informants to cause arrests and civil asset forfeiture of Americans’ property. Witness(s) and informants may be paid up to 50% of assets forfeited. Federal Government under 18USC may use a preponderance of civil evidence, little more than hearsay to Civilly Forfeit Private Property. Under the Patriot Act innocent property owners may be barred by government knowing the evidence federal government uses to forfeit their property.

Sections of 2012 NDAA are so broad, it appears U.S. Government or the President could (retroactively) deem an American’s past 1st Amendment activities prior to passage of 2012 NDAA—supported hostilities, terrorism or (Belligerents) to order the arrest and Indefinite Detention of any U.S. Citizen, writer, group or organization.

Under NDAA It should be expected that indefinitely detained U.S. Citizens not involved in terrorism or hostile activities, not given Miranda Warnings when interrogated, not allowed legal counsel or habeas corpus may be prosecuted for non-terrorist (ordinary crimes) because of their (alleged admissions) while held in Indefinite Detention.

See Below Hitler’s 1933 Discriminatory Decrees

DECREE OF THE REICH PRESIDENT FOR THE PROTECTION OF THE PEOPLE AND STATE

Note: Based on translations by State Department, National Socialism, 1942 PP. 215-17, and Pollak, J.K., and Heneman, H.J., The Hitler Decrees, (1934), pp. 10-11.7

In virtue of Section 48 (2) of the German Constitution, the following is decreed as a defensive measure against Communist acts of Violence, endangering the state:

Section 1
Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

Section 2
If in a state the measures necessary for the restoration of public security and order are not taken, the Reich Government may temporarily take over the powers of the highest state authority.

Section 4
Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reich marks.

Who ever endangers human life by violating Section 1, is to be punished by sentence to a penitentiary, under mitigating circumstances with imprisonment of not less than six months and, when violation causes the death of a person, with death, under mitigating circumstances with a penitentiary sentence of not less that two years. In addition the sentence my include confiscation of property.

Whoever provokes an inciter to or act contrary to public welfare is to be punished with a penitentiary sentence, under mitigating circumstances, with imprisonment of not less than three months.

Section 5
The crimes which under the Criminal Code are punishable with penitentiary for life are to be punished with death: i.e., in Sections 81 (high treason), 229 (poisoning), 306 (arson), 311 (explosion), 312 (floods), 315, paragraph 2 (damage to railroad properties, 324 (general poisoning).

Insofar as a more severe punishment has not been previously provided for, the following are punishable with death or with life imprisonment or with imprisonment not to exceed 15 years:

1. Anyone who undertakes to kill the Reich President or a member or a commissioner of the Reich Government or of a state government, or provokes to such a killing, or agrees to commit it, or accepts such an offer, or conspires with another for such a murder;

2. Anyone who under Section 115 (2) of the Criminal Code (serious rioting) or of Section 125 (2) of the Criminal Code (serious disturbance of the peace) commits the act with arms or cooperates consciously and intentionally with an armed person;

3. Anyone who commits a kidnapping under Section 239 of the Criminal with the intention of making use of the kidnapped person as a hostage in the political struggle.

Section 6
This decree enters in force on the day of its promulgation.
Reich President
Reich Chancellor
Reich Minister of the Interior
Reich Minister of Justice

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