Spectrum of Views on the Loss of Freedoms If Bill Is Signed
This much we know: if President Obama signs the National Defense Authorization Act (NDAA), then it will be legal for American citizens to be arrested on United States soil, and be held indefinitely without trial. The House and Senate have now both passed the bill and it is going to Obama’s desk, where it is anticipated that he will quickly sign it.
Once the bill goes into law, it is a serious threat to the Bill of Rights and the rule of law within this country. It would seriously undermine the 4th, 5th, 6th, 7th, and 8th Amendments in the Bill of Rights.
Here is what the NDAA will cut up, here is the (actual) text of these amendments that protect American citizens that will be decimated:
Fourth Amendment – Protection from unreasonable search and seizure.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Seventh Amendment – Civil trial by jury.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
We are not persuaded to drop our guard and our vow to fight this by the language inserted during conference. So says Laura W. Murphy, director of the ACLU Washington Legislative Office”
“If President Obama signs this bill, it will damage both his legacy and America’s reputation for upholding the rule of law.
The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill.
We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”
Legal scholars and observers from both sides of the political spectrum condemn this bill. Here are a few different views:
The Dangerous Defense Bill Heading Toward Obama’s Desk
You know these are interesting times when Glenn Beck, Dianne Feinstein, Rand Paul and the ACLU all stand on the same side of an issue. The issue in question is Subtitle D of the National Defense Authorization Act (NDAA), particularly Sections 1031–1033, being discussed by the House and Senate as I write and headed to the president’s desk any day now. These hastily added, under-the-radar provisions, co-sponsored by Senators John McCain and Carl Levin, would allow for the indefinite military detention of any person alleged to be a member of Al Qaeda, the Taliban or “associated forces.” The provisions also apply to any person who supports or aids “belligerent” acts against the United States, whether the person is apprehended beyond our borders or on domestic soil.
For noncitizens, such detention would be mandatory. And while news agencies from Reuters to the Huffington Post have recently reported that American citizens would be “exempt” from this requirement, the truth is more complicated. Military detention would still be the default, even for citizens, but at the discretion of the president, it could be waived in favor of handing over the case to domestic law enforcement. Under this law, if the Defense Department thinks you’re a terrorist, there would be no presumption of innocence; you would be presumed a detainee of the military unless the executive decides otherwise. Without such a waiver, again, even if you’re a citizen, you will never hear words like “alleged” or “suspected.” You will be an “unprivileged enemy belligerent,” with limited rights to appeal that status, no rights to due process, or to a jury, or to a speedy trial guided by the rules of evidence.
According to the “law of war” invoked by these sections of the NDAA, a person in military custody can be held indefinitely, without charge and without access to civilian courts. Perhaps most significant, with the suspension of constitutional provisions for due process, there would be no Fifth Amendment right to remain silent. During the Congressional debate over the NDAA, proponents like Senators Saxby Chambliss and Lindsey Graham argued that when we capture someone who is deemed an enemy, we must start with the presumption that “the goal is to gather intelligence” and “prosecution is a secondary concern.” In numbingly infantile terms, they declared that “the meanest, nastiest killers in the world” should be questioned for “as long as it takes,” without them “lawyering up.” This need to make “them” talk was cited repeatedly, endlessly, as the main justification for military detention, with references to “surprise” technologies to get prisoners to speak. As though Abu Ghraib had never happened, there was exuberant embrace of methods Senator Graham promised would not be publicized by the Army Field Manual.
Against the backdrop of President Obama’s recent exercise of that broadest of all possible executive actions—the targeted assassination of US citizen Anwar al-Awlaki—the controversy over military detention (and Obama’s threat to veto the NDAA) might seem less dramatic. (Senator Graham carried on gleefully about how much less constrained death is than “indefinite detention.”) But there is a crucial distinction: killing Awlaki, however extreme, was an action ostensibly based on tailored and specifically considered intelligence. Whether or not one agrees with it, it was not a decision generated by the kind of far-reaching, automatically militarizing mechanism this law would institutionalize.
As with much post-9/11 rhetoric, the Congressional debaters spoke of “terror” as though it were a clearly defined and embodied evil. But it is not at all clear what distinguishes mere dissent or sympathy or belief or commitment or satire from the kinds of expressions of hostile ideologies that this legislation would deem dangerous. If passed, the NDAA will inevitably be followed by a raft of First Amendment litigation. And what about “high crimes” like treason—would they still be tried in federal courts? Is treason more or less worrisome than “terrorism”?
And talk about iconic constitutional constructions: Glenn Beck’s online magazine, The Blaze, recently published a straightforwardly libertarian critique of the bill; the comments from his readers sizzle with Second Amendment belligerence from those “patriots” who declare that they are running out to buy more ammo and defecting to the hills. (“Want to see an army vet become a domestic terrorist?” reads the first comment. “If they pass this law…I will adopt a strategy of asymmetric warfare against the US government.”)
This latter breed of discontent also dovetails, no doubt, with deep, lingering resentments over states’ rights dating back to the Civil War, when the Union army occupied and governed Southern states in an effort to maintain order and protect ex-slaves. (Indeed, the proposed law would in effect revoke the Posse Comitatus Act, the Reconstruction-era law that bars the Army from engaging in domestic law enforcement.) In a less obvious way, the stripping of due process also re-establishes first- and second-class tiers of citizenship, eviscerating the Fourteenth Amendment by allowing the rights of citizenship to be suspended even more comprehensively than birthers and anti-immigration activists could have dreamed: by simple fiat.
“Citizen or not,” insists Senator Graham, it’s only “using good old-fashioned common sense” that persons covered by the act shouldn’t be given more rights than if they were in Afghanistan. And with that conceptual wand, I guess we have lowered the constitutional bar to whatever it is in Afghanistan.
Patricia J. Williams is a professor of law at Columbia University.
Lawmakers Submit Letter Opposing NDAA’s Indefinite Detention Provisions
the New American / December 15, 2011
Forty members of Congress have sent a letter urging the House and Senate Armed Services Committee leaders to protest provisions of the National Defense Authorization Act that would legalize the indefinite detention of American citizens.
The NDAA first passed in the House of Representatives weeks ago but endured strong opposition from a handful of lawmakers in the U.S. Senate last Thursday, where the bill was passed but with the addition of an amendment that forced the measure to be reconciled and revised for a final vote. The revised version of the NDAA was finalized on Tuesday, and a vote on it is set to take place this week.The letter states,The Senate-passed version of the NDAA, S. 1867, contains Section 1031, which authorizes indefinite military detention of suspected terrorists without protecting U.S. citizens’ right to trial. 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.
One signer, Rep. Martin Heinrich (D.-N.M., above left), stated,
“I strongly oppose mandating military custody and allowing for indefinite detention without due process or trial. These provisions are deeply concerning and would risk putting American citizens in military detention, indefinitely. In short, this authority is at complete odds with the United States Constitution.”
While the letter is comprised of Democrat signatures, it summarizes the concerns advanced by key Republicans such as Ron Paul, Rand Paul, and Justin Amash, all of whom have been quite public and outspoken regarding their opposition to the measure.
On December 5, Rand Paul wrote of the dangerous provisions found in the NDAA in the National Review: “If you allow the government the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whim of those in power. That is a dangerous game.”
The final version of the bill, however, does not address any of the concerns put forth in the letter or by the Republicans opposed to the NDAA.
As noted by The New American’s Joe Wolverton, the revised version of the NDAA bill “will now be sent in its conference form” for a vote in the House and the Senate, and it includes billions of dollars appropriated for a continuation of the wars in Iraq and Afghanistan. Wolverton adds that it “greases the skids for the deployment of forces into Iran (after ‘sanctions’ fail to persuade Ahmadinejad to see things our way)” and converts all of the United States into a battlefield, treating all Americans as potential suspects. The entire bill does all of this and more, costing American taxpayers $662 billion.
The final version of the bill, which followed a series of secret meetings, is now set to be voted on by the end of the week.
Any issues that the Obama administration purported to have with the Senate-passed version of the bill, none of which seemingly had anything to do with the indefinite detention of Americans, appear to have been settled in those secret meetings, including the provision that would have cut out the Federal Bureau of Investigation from the custody and prosecution of terror suspects.
The Obama administration’s veto threat was not due to the indefinite detention provision. Recent revelations by Senator Carl Levin (D-Mich.) indicate that the White House actually insisted that any language exempting American citizens from the indefinite detention provision be removed.
According to Levin, who is Chairman of the Armed Services Committee:
“The language which precluded the application of Section 1031 to American citizens was in the bill that we originally approved … and the administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section.”
Levin continued: “It was the administration that asked us to remove the very language which we had in the bill which passed the committee … we removed it at the request of the administration. It was the administration which asked us to remove the very language the absence of which is now objected to.”
Groups such as the American Civil Liberties Union and Human Rights Watch indicate that the final version of the bill does not protect Americans from any of the dangerous provisions.
“The sponsors of the bill monkeyed around with a few minor details, but all of the core dangers remain — the bill authorizes the president to order the military to indefinitely imprison without charge or trial American citizens and others found far from any battlefield, even in the United States itself,” said the ACLU’s Chris Anders.
“The latest version of the defense authorization bill does nothing to address the bill’s core problems — legislated indefinite detention without charge and the militarization of law enforcement,” concurred HRW’s Andrea Prasow.
The provisions found in Section 1031 of the bill provide the President full power to arrest and detain citizens of the United States without due process. Under that provision, the President is also afforded the authority to use the military to apprehend and detain those suspected individuals, dubbed “covered persons.” According to Section 1031, a “covered person” is one who either engages in terrorist acts, or anyone associated with an organization guilty of “belligerent acts.”
TNA’s Wolverton opines,
“’Beligerent act’ — aye, there’s the rub … Given the current inhospitable constitutional climate, is it too farfetched to imagine a scenario in the coming year (when the act would become effective) where a blogger consistently criticizing the foreign policy of the President is branded a ‘belligerent’ and captured by the military and shut away in a secure military facility without access to an attorney or the established rules of civil procedure?”
Senator Rand Paul voiced similar concerns in National Review:
The FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of “Meals Ready to Eat,” weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color. I fear that such suspicions might one day be used to imprison a U.S. citizen indefinitely without trial. Just this year, the vice president referred to the Tea Party as a bunch of terrorists. So, I think we should be cautious in granting the power to detain without trial.
Still, supporters for the bill assert that it should not make exceptions for anyone, regardless of their citizenship.
“It is not unfair to make an American citizen account for the fact that they decided to help al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” remarked Graham. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
According to the Huffington Post, however, “the last time something of this magnitude was even talked about was during World War Two when Japanese-Americans were put into internment camps following the bombing of Pearl Harbor.”
While the indefinite detention provision managed to remain in the bill, some other significant items found their way out of it, including a 2014 audit requirement for the Pentagon, reports Congressional Quarterly.
Legislating Tyranny in America
by Stephen Lendman/ indybay / Dec. 14, 2011
On December 5, the ACLU headlined, “Indefinite Detention, Endless Worldwide War and the 2012 National Defense Authorization Act (NDAA),” saying:
Enactment of this measure will authorize “the military to pick up and imprison people, including US citizens, without charging them or putting them on trial.”
Secretly with no hearings, both Houses are rushing to complete a “joint version” before leaving for Christmas break. “Fundamental American values and freedoms are on the line.” Given the stakes, they’re perilously hanging by a thread.
On December 13, the Center for Constitutional Rights (CCR) urged Obama to veto NDAA in its present form. Otherwise, he’ll “be responsible for signing into law one of the greatest expansions of executive power in our nation’s history, allowing the government to lock up citizens and non-citizens without the right to fair trials.”
Indefinite detentions violate core democratic freedoms, including fundamental Bill of Rights ones already gravely eroded.
On November 27, 1941, Franklin Roosevelt issued Proclamation 2524, declaring December 15 Bill of Rights Day to commemorate its 150th 1791 ratification. At the time, he hailed “America(‘s) charter of personal liberty and human dignity,” including “freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the free right to petition the Government for redress of grievances.”
Although American freedom then was far less than he claimed, today it hangs by a thread and may pass entirely any time for any reason. In response to global imperial wars, corporate favoritism, unbridled private sector criminality, and political corruption at the highest levels, causing economic crisis conditions at home, thousands began protesting nationwide for social justice.
In response, militarized police confront them violently as NDAA heads for enactment to stop anyone from challenging US hegemony and corporate power by throwing them indefinitely in military dungeons to rot. Equity and justice are fast eroding entirely to advance America’s imperium. On May 26, the House passed HR 1540, 322 – 96. Doing so took a giant step toward abolishing freedom entirely.
On December 1, the Senate’s S. 1867 followed suit, 93 to 7. Both versions assure no one anywhere is now safe, including law-abiding US citizens. Enactment means anyone anywhere, including US citizens, may be indefinitely held without charge or trial, based solely on suspicions, baseless allegations or none at all. No reasonable proof is required, just suspicions that those detained pose threats. Under subsection (b)(1), indefinite detentions can follow mere membership (past or present) or support for suspect organizations.
Presidents will have unchecked authority to arrest, interrogate and indefinitely detain law-abiding citizens if accused of potentially posing a threat. Constitutional, statute and international laws won’t apply. Presidential diktats will replace them. US military personnel will be authorized to arrest and indefinitely detain anyone globally, including US citizens. No one anywhere will be safe.
Due process, civil protections, and judicial fairness will be null and void. Presidents could order anyone arrested and imprisoned for life without charge or trial. Abuse of power will replace rule of law protections. It can happen in days.
Ahead of their holiday break, leaders from both Houses are meeting secretly to resolve final language differences before sending NDAA to Obama to sign.
Promising a veto, he lied. He broke every major promise made. This one’s no exception at a time he can go either way, given enough congressional votes to override him.
Moreover, Senate bill sponsor Carl Levin said administration officials, in fact, lobbied against language excluding US citizens from indefinite military detentions without trials or due process. According to Levin:
“The language which precluded the application of Section 1031 to American citizens was in the bill that we originally approved….and the administration asked us to remove (it) which says that US citizens and lawful residents would not be subject to this section.”
“It was the administration that asked us to remove the very language which we had in the bill which passed the committee. (W)e removed it at the request of the administration….It was the administration which asked us to remove the very language, the absence of which is now objected to.”
In other words, Obama wants US citizens indefinitely detained in military prisons whether or not charged. He fully supports police state repression. Only his disingenuous rhetoric says otherwise.
Earlier by Executive Order, he authorized indefinite detentions with or without military commission trials for persons designated national security threats. Intended specifically for Guantanamo detainees, it could be stretched to include anyone.
In addition, he authorized CIA operatives and Special Forces death squads to kill targeted US citizens abroad. As a result, they may be hunted down and murdered in cold blood for any reason or none at all.
Outspoken Muslim cleric Anwar al-Awlaki, a US citizen living in Yemen at the time, was killed for opposing Washington’s imperium, not alleged or committed crimes. His murder comes perilously close to replicating assassinations at home, whether covertly or openly.
In fact, administration lawyers called US citizens legitimate targets if deemed national security threats, with or without corroborating evidence. As a result, indeed no one’s safe, whether or not NDAA passes in its current form.
According to CIA counsel Stephen Preston and Pentagon lawyer Jeh Johnson, US citizens at war with America have no immunity. Executive branch officials, not courts, will decide guilt or innocence issues.
In other words, anyone voicing opposition to America’s imperium risks being targeted for arrest, detention or assassination.
With regard to Obama’s NDAA position, his White House November 17 Statement of Administration Policy said:
“The Administration supports Senate passage of (NDAA) for Fiscal Year (FY) 2012.”
“Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qaida and its associated forces….”
“Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk….While the current language minimizes many of those risks, future legislative action must ensure (against) unintended consequences that could compromise our ability to protect the American people.”
Senate bill S. 1867, Section 1031, affirms the “authority of the armed forces of the United States to detain covered persons,” including US citizens.
Section 1032 requires suspects held in military custody, outside constitutionally mandated civil protections, without habeas rights, due process, and other judicial procedures. Obama may object to legislative language, not its intent. As a result perhaps, wiggle room wording changes may assuage his concerns, while leaving sweeping indefinite military detention authorization unchanged.
In other words, presidents henceforth may order anyone indefinitely detained in military prisons uncharged, including US citizens.
A Final Comment
Even before 9/11, Washington began militarizing police forces nationwide. Sophisticated weapons and training are provided, including military robots, M-16 assault rifles, helicopters, armored vehicles, grenade launchers, and other weapons previously used only by military forces.
In 1997, the so-called 1033 Program (formerly the 1208 Program) let the Defense Secretary “transfer, without charge, excess US Department of Defense (DoD) personal property (supplies and equipment) to state and local law enforcement agencies (LEAs).”
As a result, they’ve been supplied with land, air and sea vehicles, weapons, computer equipment, body armor, fingerprint equipment, night vision equipment, radios and televisions, first aid equipment, tents, sleeping bags, photographic equipment, and more.
In 2011 alone, about $500 million in military related hardware was supplied. Next year’s amounts are expected to increase fourfold. Doing so coincides with OWS crackdowns.
More than ever, America is being militarized to quash popular social justice protests at a time equity and justice are fast disappearing. Moreover, military forces may intervene if local cops need help. Post-9/11, police state terrorism was institutionalized. It’s being hardened more than ever to crush dissent.
Constitutional, statute, and international law protections no longer apply. Planned tyranny will replace them, leaving no one safe anywhere henceforth.