NDAA: The Important Lawsuit that No One is Talking About

Truthdig, August 10, 2012

 

Despite a mainstream media blackout on the topic, the alternative media is abuzz with this week’s hearing on the constitutionality of the clearly unconstitutional NDAA.  In case you don’t remember, section 1021 of the NDAA, which Obama signed into law on December 31 of last year, allows the government to lock up U.S. citizens indefinitely without a trial.  At the time of signing, Obama penned a pathetic letter to many of his outraged supporters where he basically said he signed it but he won’t use it.  Thanks pal!

In any event, the Administration is showing its true colors by appealing an injunction that judge Katherine Forrest issued against it in May.  The injunction was in response to the lawsuit filed by Pulitzer Prize winning journalist Chris Hedges and others.  While the NDAA clearly vaporizes the 5th and 6th Amendments of the Constitution, the real target is the 1st Amendment.  By having a law on the books that allows the government to arbitrarily lock anyone up and throw away the key, the government is actually trying to instill enough fear in people that they self-censor speech and become too afraid to criticize the criminal elite political and economic oligarchy.

Tangerine Bolen is one the lead plaintiffs in the suit against the government and she penned a powerful piece for the UK’s Guardian.  Here are some key quotes:

I am one of the lead plaintiffs in the civil lawsuit against the National Defense Authorization Act, which gives the president the power to hold any US citizen anywhere for as long as he wants, without charge or trial.

In a May hearing, Judge Katherine Forrest issued an injunction against it; this week, in a final hearing in New York City, US government lawyers asserted even more extreme powers – the right to disregard entirely the judge and the law. On Monday 6 August, Obama’s lawyers filed an appeal to the injunction – a profoundly important development that, as of this writing, has been scarcely reported.

Judge Forrest had ruled for a temporary injunction against an unconstitutional provision in this law, after government attorneys refused to provide assurances to the court that plaintiffs and others would not be indefinitely detained for engaging in first amendment activities. At that time, twice the government has refused to define what it means to be an “associated force”, and it claimed the right to refrain from offering any clear definition of this term, or clear boundaries of power under this law.

This past week’s hearing was even more terrifying. Government attorneys again, in this hearing, presented no evidence to support their position and brought forth no witnesses. Most incredibly, Obama’s attorneys refused to assure the court, when questioned, that the NDAA’s section 1021 – the provision that permits reporters and others who have not committed crimes to be detained without trial – has not been applied by the US government anywhere in the world after Judge Forrest’s injunction.

Full article here.

Ominous Phrase

Here's a phrase that will sum up life in the US, under 2011 NDAA...guilty--regardless if proven innocent.

Gone are the 4th, 5th, 6th and 8th amendments -- 2/3 of the Bill of Rights.

Even if Obama doesn't execute the 2011 NDAA to its fullest extent, he has allowed all future presidents to wield that tyrannical power.

Understand that if you think I and those like me are making too big a deal of this issue.

The NDAA's Historic Assault on American Liberty

Monday, January 2, 2012 by Jonathan Turley's Blog
By signing into law the NDAA, the president has awarded the military extraordinary powers to detain US citizens without trial
by Jonathan Turley
 

President Barack Obama rang in the New Year by signing the NDAA law with its provision allowing him to indefinitely detain citizens. It was a symbolic moment, to say the least. With Americans distracted with drinking and celebrating, Obama signed one of the greatest rollbacks of civil liberties in the history of our country … and citizens partied in unwitting bliss into the New Year.

Ironically, in addition to breaking his promise not to sign the law, Obama broke his promise on signing statements and attached a statement that he really does not want to detain citizens indefinitely (see the text of the statement here).

Obama insisted that he signed the bill simply to keep funding for the troops. It was a continuation of the dishonest treatment of the issue by the White House since the law first came to light. As discussed earlier, the White House told citizens that the president would not sign the NDAA because of the provision. That spin ended after sponsor Senator Carl Levin (Democrat, Michigan) went to the floor and disclosed that it was the White House and insisted that there be no exception for citizens in the indefinite detention provision.

The latest claim is even more insulting. You do not "support our troops" by denying the principles for which they are fighting. They are not fighting to consolidate authoritarian powers in the president. The "American way of life" is defined by our constitution and specifically the bill of rights. Moreover, the insistence that you do not intend to use authoritarian powers does not alter the fact that you just signed an authoritarian measure. It is not the use but the right to use such powers that defines authoritarian systems.

The almost complete failure of the mainstream media to cover this issue is shocking. Many reporters have bought into the spin of the Obama administration as they did the spin over torture by the Bush administration. Even today, reporters refuse to call waterboarding torture despite the long line of cases and experts defining waterboarding as torture for decades.

On the NDAA, reporters continue to mouth the claim that this law only codifies what is already the law. That is not true. The administration has fought any challenges to indefinite detention to prevent a true court review. Moreover, most experts agree that such indefinite detention of citizens violates the constitution.

There are also those who continue the longstanding effort to excuse Obama's horrific record on civil liberties by blaming either others or the times.

One successful myth is that there is an exception for citizens. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is 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 as not just subject to indefinite detention but even to execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.

The Obama administration and Democratic members are in full spin mode – using language designed to obscure the authority given to the military. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the next section, 1031, which offers no exemption for American citizens from the authorisation to use the military to indefinitely detain people without charge or trial.

Obama could have refused to sign the bill and the Congress would have rushed to fund the troops. Instead, as confirmed by Senator Levin, the White House conducted a misinformation campaign to secure this power while portraying the president as some type of reluctant absolute ruler, or, as Obama maintains, a reluctant president with dictatorial powers.

Most Democratic members joined their Republican colleagues in voting for this un-American measure. Some Montana citizens are moving to force the removal of these members who, they insist, betrayed their oaths of office and their constituents. Most citizens, however, are continuing to treat the matter as a distraction from the holiday cheer.

For civil libertarians, the NDAA is our Mayan moment: 2012 is when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.

Combating the Distortions Over NDAA Military Detentions

Does This Mean You? You'd Better Believe It

By Ralph Lopez - opednews.com
 

Perhaps the only thing more worrisome than the recently passed NDAA provisions for the indefinite military detention of American citizens is the extent and sophistication of the efforts to distort their true meaning in order to lead people to believe that American citizens are excluded.  Rep. Justin Amash took a rare bare-knuckled swipe in this most collegial of institutions to say that the NDAA was "carefully crafted to mislead the public."

That's the equivalent of calling some pretty powerful people whom you work with liars, on whose good graces passing your legislation may depend.  It's not done in this place unless it is something you feel very strongly about.

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 Sections 1021 and 1022.

Section 1021 says in substance:

"Congress affirms that the authority of the President to use all necessary and appropriate force ...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 under the law of war...without trial until the end of the hostilities..."

This is how a court must read it when the words are parred down to their true meaning, without inoperative subordinate clauses.  You can see the full text below.  This is taken straight from the final House-Senate Conference Committee report (HR 1540 Conference), which is the language that was passed by the Senate after being passed by the House, on Dec. 15, Bill of Rights Day in an 86 - 14 vote of the Senate which sent it to the president's desk.

20 SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED
21 FORCES OF THE UNITED STATES TO DETAIN
22 COVERED PERSONS PURSUANT TO THE AU-
23 THORIZATION FOR USE OF MILITARY FORCE.
24 (a) IN GENERAL.--Congress affirms that the author-
25 ity of the President to use all necessary and appropriate
1 force pursuant to the Authorization for Use of Military
2 Force (Public Law 107--40; 50 U.S.C. 1541 note) includes
3 the authority for the Armed Forces of the United States
4 to detain covered persons (as defined in subsection (b))
5 pending disposition under the law of war.
6 (b) COVERED PERSONS.--A covered person under
7 this section is any person as follows:
8 (1) A person who planned, authorized, com-
9 mitted, or aided the terrorist attacks that occurred
10 on September 11, 2001, or harbored those respon-
11 sible for those attacks.
12 (2) A person who was a part of or substantially
13 supported al-Qaeda, the Taliban, or associated forces
14 that are engaged in hostilities against the United
15 States or its coalition partners, including any person
16 who has committed a belligerent act or has directly
17 supported such hostilities in aid of such enemy
18 forces.
19 (c) DISPOSITION UNDER LAW OF WAR.--The dis-
20 position of a person under the law of war as described
21 in subsection (a) may include the following:
22 (1) Detention under the law of war without
23 trial until the end of the hostilities authorized by the
24 Authorization for Use of Military Force.

Rep. Tom McClintock opposed the bill on the House floor saying it:

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.

"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.

Tarek Mehanna, a young Muslim-American who is looking at life in prison just for talking bad about America, and surfing Jihadi websites in a soul search in which he consistently rejected attacking civilians, rejected an entrapment attempt by the FBI, and was finally kicked of the Jihadi website because he was talking young men away from violence.  If anyone was ever not a threat to America, it's him.  The government made many allegations, but these are the only ones it can prove.

This is what "substantially supporting Al Qaeda or associated forces" can mean now that this precedent has been set.  The next precedent will be sitting on the road blocking the deployment of wounded soldiers as Iraq Veterans Against the War did at Ft. Hood.  And the precedent after that will require even less, a "thought crime."  A boycott called for by Occupy Wall Street becomes "economic terrorism."

Most often missed in the discussion, of course, is that all accusations of who is "Al Qaeda" 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.

Section 1021 also reads: "Nothing in this section shall be construed to affect existing law." But "existing law," in the words of Sen. Lindsey Graham a key mover of the bill, refers 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.

Finally Section 1022 "(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS" states:

(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."   This is a key spin of the disinformation on NDAA.

You clearly see the words "does not extend to citizens of the United States."  You can see that, Buford, can't you see that?  What you don't clearly see is the word "requires," which is not to say "does not allow."  It's the fine print.  To put it bluntly, it's a goddamned lawyer's trick.

Never think this does not apply to you.  It does.  If you want to do something about it go here:

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

here, "Oath Keepers Launches National Effort to Recall and/or Remove Members of Congress Who Voted for NDAA Military Detention. Merry Christmas, U.S. Congress!"

or here, "Facebook: "Recall Every Congressman Who Voted for the NDAA."

Defense Act Affirms Indefinite Detention of US Citizens

Friday, December 30, 2011 by Inter Press Service

by Matthew Cardinale 

 

ATLANTA, Georgia - Civil liberties groups and many citizen activists are outraged over language in the National Defense Authorization Act of 2011 (NDAA) that appears to lay the legal groundwork for indefinite detention of U.S. citizens without trial.

David Gespass, president of the National Lawyers Guild, called it an "enormous attack on the U.S. and our heritage" and a "significant step" towards fascism, in an interview with IPS.

"For a very long time the U.S. has been moving towards what I personally think of as fascist - the integration of monopoly capital with state power, that's combined with an increased repression at home and greater aggression around the world. I don't think we're there yet, but I do see that we're going in that direction," Gespass said. "I think the... act is a significant step in that direction."

"It's quite severe. If this continues, people will not be able to count on constitutional protections at all," Debra Sweet, national director of the group World Can't Wait, told IPS.

Subtitle D of the act contains several controversial provisions on indefinite detention of terrorism suspects.

The executive branch - starting with the George W. Bush administration shortly after Sept. 11, 2001 - began indefinitely detaining terrorism suspects without trial at Guantanamo Bay, Cuba.
When those detentions were challenged in the courts, the federal government argued that the Authorization for Use of Military Force (AUMF), passed by the U.S. Congress on Sep. 18, 2001, allowed for the detentions to occur. In 2004, the Supreme Court agreed in Hamdi v. Rumsfeld.

"I know a lot of people who voted in favour of it (AUMF) back then didn't think they voted in favor of what ended up happening, but what it said is the president is authorized (to do) whatever is necessary," Gespass said. "The language as I recall it is not at all restrictive."

The current language in the NDAA seeks to legislatively affirm that the U.S. has the right to detain people, even though the courts already ruled, at least in the case of Hamdi, a prisoner captured during armed conflict in Afghanistan, that it already has that power.

Section 1021 defines who can be detained by the military.

The definition of "covered persons" under the provision includes not only those who planned, authorized, committed, or aided the terrorist attacks of Sept. 11, 2011, but also "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 anyone who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

Critics say problems with this language include the vagueness of the terms "substantial support", "belligerent act", or "directly supported".

Moreover, because the act allows for individuals suspected of support or belligerence to be held indefinitely without trial - until the end of the "war on terror", which could be never - there could be no opportunities for these individuals to challenge the vagueness of the charges against them.

Section 1021(e) says the act does not alter any rights of U.S. citizens, meaning that the Bill of Rights of the Constitution remains "intact." It might be up to the courts, however, to eventually determine whether the application of these NDAA provisions to a U.S. citizen would be constitutional.

However, if they are being detained indefinitely with no lawyer, then how does anyone know they are there, to appeal to the civilian courts on their behalf?

Another section says "the requirement to detain a person in military custody under this section does not extend to citizens of the United States". It does not say military custody is not an option; merely that it is not required.

The NDAA, as negotiated between the U.S. House and Senate, passed the U.S. House 283-136 on Dec. 14. It passed the U.S. Senate, in a vote of 86 to 13, on Dec. 15, with both Democrats and Republicans among those opposing it.

The bill was presented to President Barack Obama on Dec. 21 and signed Dec. 31, 2011.

However, numerous members of Congress have raised concerns.

Prior to its passage, on Dec. 12, Representatives Hank Johnson, Martin Heinrich and 30 others sent a letter to the chairs and ranking members of the U.S. House and Senate's respective Armed Services Committees.

They expressed their opposition to "an expansive authorization for detention of and use of military force against broadly defined adversaries substantially exceeding the scope of such authorizations already in law."

"The expanded authority has no geographical limits, provides authority for open-ended armed conflict, and is unacceptably broad," they wrote.

The NDAA "authorizes indefinite military detention of suspected terrorists without protecting U.S. citizens' right to trial," they wrote.
"We are deeply concerned that this provision could undermine the Fourth, Fifth, Sixth, Seventh, and Eighth amendment rights of U.S. citizens who might be subjects of detention or prosecution by the military," they wrote.

On Dec. 15, Senator Dianne Feinstein introduced the Due Process Guarantee Act of 2011 (DPGA), with 15 co-sponsors.

This legislation states, "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention."

A companion piece was introduced in the U.S. House on Dec. 16; it has 29 co-sponsors.

Meanwhile, in Montana, activists have begun an effort to recall their entire Congressional delegation for supporting the NDAA.