If Obama Signs the Defense Bill – It Will Be Legal for American Citizens to Be Arrested On American Soil and Indefinitely Detained Without Trial

by on December 16, 2011 · 12 comments

in American Empire, Civil Rights, Military, Popular, War and Peace

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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

Patricia J. Williams /  The Nation /December 14, 2011  

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.

{ 12 comments… read them below or add one }

Monty Kroopkin December 16, 2011 at 5:52 pm

Here is another commentary on the subject, worth reading:


The We-Are-At-War! Mentality
Thursday, 15 December 2011 18:53
by Glenn Greewald

Two significant events happened on Thursday: (1) the Democratic-led Senate rejuvenated and expanded the War on Terror by, among other things, passing a law authorizing military detention on U.S. soil and expanding the formal scope of the War; and (2) Obama lawyers, for the first time, publicly justified the President’s asserted (and seized) power to target U.S. citizens for assassination without any transparency or due process. I wrote extensively about the first episode on Thursday, and now have a question for those supporting the assassination theories just offered by the President’s lawyers.

To pose that question, I’d like to harken back for a moment to the controversy over the Guantanamo detention system. Democrats universally purported to be appalled that the Bush administration was indefinitely imprisoning people without any charges or due process. Barack Obama, as a Senator from Illinois, denounced “the Bush Administration’s attempt to create a legal black hole at Guantanamo” — i.e., that people would be put in cages, possibly forever,with no charges. But Bush lawyers offered a theory for why due-process-free imprisonment was justifiable.

The theory had these four fairly simple premises:

(1) Terrorism is not primarily a criminal offense. It is an act of war. Thus: We Are At War With The Terrorists.

(2) Those who try to harm the U.S. as part of this War are combatants and Terrorists — not criminals — and are thus entitled to no due process or any other rights to which accused criminals are entitled. It is the U.S. military (led by the Commander-in-Chief) — not courts — which decides who is and is not a combatant and Terrorist.

(3) Whether someone is a combatant or Terrorist is decided by only one thing: the President’s unilateral decree. Once the President decrees someone a combatant or Terrorist — including one of his own citizens — that person by definition becomes one, and he can then be treated as such without any further judicial process or Constitutional protection. Once that presidential accusatory decree issues, protections of the Constitution and law disappear. In sum, presidential accusations that someone is a Terrorist are the same as proof and a verdict of guilt.

(4) Unlike virtually every other war ever fought, the “battlefield” of this War is not found where opposing forces are shooting at each other, but is rather defined as: wherever an accused Terrorist is found anywhere in the world. Thus, the President’s battlefield powers — which are limitless: unilateral targeting for death, indefinite imprisonment without charges, spying on communications without any oversight – are not confined to any geographical location, but instead can be applied everywhere. Wherever an accused combatant or Terrorist physically exists — sleeping in a bed, riding in a car with his children, thousands of miles away from any actual shooting — is the “battlefield.”

Those were the once-controversial theoretical premises offered repeatedly by Bush lawyers and other defenders to justify the Guantanamo detention system. More generally, these theories were (and remain) the heart and soul of the neocon view of the War on Terror. Once you accept those four premises, there is no coherent way to oppose Guantanamo. So here is my question:

At this point, do Obama defenders reject any of these four premises? I mean this literally: I cannot count how many times I have heard exactly this same theory offered by Obama supporters justifying his assassination powers (the President is entitled to target citizens for death because we are at War, and once you take up arms against the U.S. (meaning: once the President accuses you of doing so) you have no due process rights). Indeed, there simply is no possible way to defend the assassination powers claimed by Obama without embracing each of these theories. And therefore, here is what Obama lawyers said on Thursday:

U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday. The lawyers were asked at a national security conference about the CIA killing of Anwar al-Awlaki, a U.S. citizen and leading al-Qaida figure. . . .

The government lawyers, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, did not directly address the al-Awlaki case. But they said U.S. citizens do not have immunity when they are at war with the United States.

Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.

When Obama lawyers refer to “U.S. citizens who take up arms with al-Qaida,” what they mean is this: those whom the President accuses (in secret, with no due process or evidence presented) of having taken up arms with al-Qaida. When they refer to “battlefield targeting decisions,” they do not mean a place where there is active fighting, but rather: anywhere in the world an accused Terrorist is found (leaving no doubt about that, Johnson decreed that the limits of “battlefield v. non battlefield is a distinction that is growing stale“). In other words: the whole world is the battlefield, a claim Obama officials have long embraced, and someone is a Terrorist the minute the President declares him to be one: the President is the sole judge, the sole jury, and now even the sole executioner.

So my question to defenders of Obama’s assassination powers is this: which of those four core Bush/Cheney War on Terror premises do you reject, if any? Given the theories used to justify Bush/Cheney powers — ones that were just repeated almost verbatim by Obama lawyers when asked about the Awlaki assassination — how can anyone coherently have objected to the Bush/Cheney Guantanamo detention system but support Obama’s assassination powers now? Indeed, if anything, the Obama assassination powers are more extremist than the Guantanamo detention system; that’s true for two reasons: (1) Bush/Cheney imprisoned foreign nationals at Guantanamo, whereas Obama has targeted U.S. citizens with death (foreign nationals captured on foreign soil have – according to the Supreme Court – far less Constitutional protections (if they have any) than U.S. citizens, who retain Constitutional protections no matter where they are); and (2) death-by-CIA-drone is obviously a more draconian deprivation than imprisonment at Guantanamo. In sum, how is it possible to support Obama’s assassination powers without embracing each of those four theories used to justify Guantanamo?

Once you have embraced those theories offered by Obama lawyers, you have, by definition, embraced the Bush/Cheney War on Terror (indeed, as Marcy Wheeler documents, those Obama lawyers even explicitly defended the very theories used by Bush DOJ lawyers to justify the Bush NSA eavesdropping program and sweeping secrecy powers; Obama DOJ lawyer Marty Lederman, for instance, announced: because of secrecy powers, “we’re in armed conflicts with some groups the American public doesn’t know we’re in armed conflict with“). During the Bush presidency, I spent years arguing — without opposition from a single progressive, literally — that the two most radical and dangerous premises ushered in by Bush/Cheney were these: (1) the whole world — including places where this is no shooting or fighting — is now deemed a War battlefield (which means unlimited Presidential war powers exist everywhere); and (2) presidential accusations of being a Terrorist are now deemed the equivalent of binding verdicts of guilt. Is there any possible way to support Obama’s assassination powers without embracing both of those notions? I’m genuinely interested in hearing answers to that question.

* * * * *

There is one other point to make about what used to be a leading point of contention between progressives and neocons – the mantra that We are at War with the Terrorists! and must treat accused Terrorists as warriors, not criminals – but has now, in the Obama era, become standard dogma for Democrats as well (you will not have a debate with a defender of Obama’s assassination powers or other War on Terror policies of his without hearing this war sloganeering). It’s hard to overstate how central this We-are-at-War! mentality is to all of these powers being claimed in the name of Terrorism.

But far more than it is a political or legal belief, it’s a psychological need — a deep-seated, eager need — to believe we are at War. It’s really an addiction. For instance, Lindsey Graham — easily one of the nation’s most radical warmongers — is so single-mindedly devoted to insisting that We-are-at-War! that it has become a full-time obsession of his for years. He constantly compares the War on Terror to the war against Nazis (the way neocons, and now the hardest-core Obama defenders, have long invoked the Civil War to justify War on Terror abuses), and even once went so far as to proclaim: “Free speech is a great idea, but we’re in a war.”

But this need to embrace the idea that We-are-at-War! is driven far more by psychological and emotional desires than it is legal or policy views. It’s all about feeling strong and purposeful — we are Warriors for a great cause just like our noble forefathers who won the Civil War and vanquished the Nazis – and has virtually nothing to do with combating Terrorism. This obsession with mandating military detention for Terrorists — when civilian trials have succeeded more effectively than military tribunals in keeping Terrorists imprisoned — underscores its real purpose: it has nothing to do with counter-Terrorism and everything to do with clinging to the psychological purpose bestowed by War. As a recent report from the ACLU put it:

This dynamic of our political discourse has been driven in part by a wholly contrived “debate” over whether the threat of terrorism calls for a “military” or “law enforcement” response, with the former depicted as muscular and the latter anemic. According to this view, punishing ter­rorists as the criminals they are is derided as a reflection of a “pre-9/11 mindset,” while ag­grandizing them as the warriors they claim to be is celebrated as taking the threat “seriously.” But this debate says more about the self-image of the would-be warriors than it does about any realities of counter-terrorism.

What’s most striking to me about this need on the part of so many Americans in both parties to insist that We-are-at-War! is how similar it is to the mindset driving Al Qaeda members. Al Qaeda members are every bit as insistent as America’s little Lindsey Graham warriors that they are not mere criminals, but are combatants engaged in glorious War. Here is how Richard Reid, convicted of attempting to detonate a shoe bomb on an civilian airplane, described himself at his sentencing hearing:

I am at war with your country. I’m at war with them not for personal reasons but because they have murdered more than, so many children and they have oppressed my religion and they have oppressed people for no reason except that they say we believe in Allah.

In reply, the sentencing judge said this — addressing first the U.S. Government and then the defendant:

There is all too much war talk here. And I say that to everyone with the utmost respect. . . . [To Reid:] You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders. In a very real sense Trooper Santiago had it right when first you were taken off that plane and into custody and you wondered where the press and where the TV crews were and you said you’re no big deal. You’re no big deal.

People involved in mere criminal activities — committing them or catching them — are “no big deal.” That’s precisely why both Al Qaeda members and war-obsessed Americans have the same goal: to elevate their conflict, and thus themselves, by viewing themselves at war, as warriors.

Just listen to how vital it also was for Khalid Shiekh Mohammed to see what he was doing as an act of war rather than a mere crime, echoing Lindsey Graham and those in the U.S. who insist that we-are-at-War! The accused 9/11 mastermind clung desperately to the same pretense: that he was a warrior and a combatant in a raging war, just like George Washington and the members of the American military he was addressing at his military commission. As a result, he argued, they should understand that the civilian casualties Mohammed was accused of causing on 9/11 are simply part of what every “military man” does:

What we find here is that the extremes on both sides of every conflict eventually come to mirror one another perfectly. Israelis settlers and Hamas have an equal desire to prevent a peace agreement and for the same reasons. American neocons and extremists in Iran have an equal desire to inflame conflict between the U.S. and Iran and end up thinking exactly alike. And Al Qaeda members and the we-are-at-war! extremists in the U.S. have a convergence of mindsets as well (see here to understand how Lindsey Graham is as deranged and bloodthirsty as anyone in the world). Historian Richard Hofstadter, in his influential 1964 Harper‘s essay entitled “The Paranoid Style in American Politics,” described perfectly how the extremists on two sides of a conflict are almost always identical (and, in doing so, he emphasized, accurately, that this dynamic “is not confined to our own country and time; it is an international phenomenon”):

The paranoid spokesman sees the fate of conspiracy in apocalyptic terms — he traffics in the birth and death of whole worlds, whole political orders, whole systems of human values. . . . He does not see social conflict as something to be mediated and compromised, in the manner of the working politician. Since what is at stake is always a conflict between absolute good and absolute evil, what is necessary is not compromise but the will to fight things out to a finish.

Since the enemy is thought of as being totally evil and totally unappeasable, he must be totally eliminated — if not from the world, at least from the theatre of operations to which the paranoid directs his attention. This demand for total triumph leads to the formulation of hopelessly unrealistic goals, and since these goals are not even remotely attainable, failure constantly heightens the paranoid’s sense of frustration. Even partial success leaves him with the same feeling of powerlessness with which he began, and this in turn only strengthens his awareness of the vast and terrifying quality of the enemy he opposes.

The enemy is clearly delineated: he is a perfect model of malice, a kind of amoral superman — sinister, ubiquitous, powerful, cruel, sensual, luxury-loving. Unlike the rest of us, the enemy is not caught in the toils of the vast mechanism of history, himself a victim of his past, his desires, his limitations. He wills, indeed he manufactures, the mechanism of history, or tries to deflect the normal course of history in an evil way. . . . It is hard to resist the conclusion that this enemy is on many counts the projection of the self; both the ideal and the unacceptable aspects of the self are attributed to him.

The Enemy — which America’s warriors maintain and glorify with their endless we-are-at-War! fixation and in whose name Endless War is waged and civil liberties are destroyed — is, indeed, “on many counts the projection of the self.” There’s a good reason why Al Qaeda members and American would-be warriors are both equally desperate to maintain the we-are-at-War! mindset: it’s what gives them purpose and justifies everything they do.

* * * * *

One last point about these we-are-at-War! advocates: The Atlantic‘s Jeffrey Goldberg yesterday compiled establishment news reports documenting the multiple acts of war directed at Iran: explosions, murders of their scientists, cyber warfare, and he asked: Is Iran Already Under Attack by some combination of the U.S. and Israel? I wrote about the same question earlier this week in the context of Roger Cohen’s New York Times column which essentially argued (and celebrated) that the U.S. and Israel are already waging a covert war against Iran (Cohen wrote that it “would take tremendous naïveté to believe these events are not the result of a covert American-Israel” effort). Just consider how amazing that is: so war-obsessed is America’s political and media culture that it seems indisputably clear that the U.S. Government — in total secrecy, without any remote legal basis — is involved to some unknown degree in multiple acts of war against Iran, and nobody seems to notice or care or even want to know what the U.S. Government is doing in this regard. If you feel like you need to attack countries in total secrecy, Mr. Commander-in-Chief, go ahead: no need even to tell us. That is what this we-are-at-War! mindset produces.

This article originally appeared on Salon

Follow Glenn Greenwald on Twitter: @ggreenwald.More Glenn Greenwald


Roger Brown December 16, 2011 at 6:07 pm

It seems you guys down in the tropics are doing good. Check out this link for an article about Occupy Tampa. Great list of worms that are coming out of this can.



AC December 16, 2011 at 6:56 pm

The unconstitutional provisions of NDAA 2012 carry no force of law: they are unconstitutional.


silence is defeat December 17, 2011 at 1:14 am

You’re right AC-and not onlyis it unconstitutional, its treachery. It’s not defense to lock up your citizens without fair trial or due process….it’s tyranny.


silence is defeat December 17, 2011 at 1:11 am

The water pot is boiling and it is now imperative that we jump out! I fear our president will not veto this terrible ‘defense’ act…..If he does veto it, he will be hailed for his patriotism and loyalty to our foundations as a free and just nation. God help us all….


Monty Kroopkin December 18, 2011 at 3:30 pm

I’ll putting in a link here, to comments by Dave Rice and myself, about the media and related issues. The comments are for a different article, but I think highly relevant to the new fascist law we’re discussing here.

Those comments start here

I also saw an article by a retired high-level CIA analyst, about the new fascist law. He directly relates it to the “extraordinary measures” introduced by the Nazis after they took power in 1933. The article, entitled “Battlefield America” is at



King of Me December 23, 2011 at 11:39 am

This is BIG.

I think it’s important that everyone realizes this.

Spread the word: fight.

If we continue our normal course now- work, home, T.V, and the casual day, then we will wake up one day and our inherent liberties will be gone (as is happening).

Everyone must join: not necessarily in a physical sense, but in intent.

Preserve what our founding fathers had intended. Freedom.


blah blah December 23, 2011 at 12:32 pm

In the 5th Amendment, you should have bolded “…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.” Because, that is where they are saying this bill is legally supported. This bill gives the POTUS, the Commander in Chief of the military, the right to order the military to detain people indefinitely, because the 5th states cases arising in “land or naval forces” (IE: times of war that involve the military) can bypass Grand Jury “when in actual service in time of War or public danger.” Terrorist activities are considered “public danger”, and we find US Citizens sometimes doing them now (EG: the guy that tried to bomb Times Square and failed). The gov’t is trying to cover these situations by affording them the right to detain such people permanantly without going through the legal system or first fighting to convict them of treason, revoking their citizenship, and THEN sending them to detention. The idealism behind the bill is that it allows the gov’t to be swift in securing a terror suspect that could potentially do great harm to our society. The consequence of this bill, though, since it’s so ambiguously worded, is that lots of folks fall under it. By allowing things to fall under “military jurisdiction” instead of police jurisdiction, they can bypass a lot of due process for suspects. Personally, if I were the police, I’d be upset about the federal government taking over my jurisdiction to protect and serve my city, county and state citizenry. But, police are only allowed to detain someone for 72 hours before they must charge them for something. The problem is, in some of these terror situations, they need a lot more time to fully explore just what the heck is going on. Thus, the gov’t wants to have indefinite detention for investigation. Unfortunately, since it doesn’t have a provision stating the gov’t must ultimately charge the suspect with something, indefinite detention can literally just turn into tossing someone into a jail cell for the rest of their life and forgetting about them. That is a very scary propostion. Likewise, while people are arguing that NDAA 2012 does not apply to US Citizens, “terrorist activities” or “conspiring with an enemy of the state” is considered treason. And, if a citizen is brought up on charges of treason and convicted, their citizenship is revoked and NDAA 2012 is now able to be brought down on them in full effect (IE: they can be detained indefinitely, and shipped off to a foreign country to be tortured). People think they can hide behind their US Citizenship, but the judicial system has the power to take that away from you. And if the “war on terror” expands to become a witch hunt, things could fall down a very slippery slope quickly.


Lysander Spooner January 21, 2012 at 11:10 pm

“EG: the guy that tried to bomb Times Square and failed”

In that case and nearly all other acts of terrorism, the vast majority have been found to be either carried out by someone within government, or were allowed to be carried out while someone within government looked the other way, knowing that it would be good for “business”.

Watch “A Noble Lie” about the OKC bombing, or listen to Richard Andrew Grove’s “Project Constellation” (a mind blowing expose of Wall Street activities in the months, weeks, and days before 9 eleven), and then tell me with a straight face that any of these laws are a REACTION to these events. MY ASS. These so called “laws” are the PAYOFF. It’s all about CONTROL. They think they own us like livestock, and they’re flat wrong. They’re a bunch of pot bellied pedophile control freaks, and their gig is about up.


blah blah December 23, 2011 at 12:36 pm

I guess to make my point more clear, the gov’t is able to bypass due process b/c they consider “terrorist activities” to be something under military jurisdiction, not police jurisdiction. The suspects arrested after 9/11 … they were not brought to trial or such b/c they were deemed “military acquisitions”, not “police acquisitions”. That’s the catch-22…that’s the loophole that’s being abused. When the gov’t uses the military to arrest people, all kinds of rights are lost. Like I said, the first people that should be standing up and complaining about this is the city, county and state police, b/c this is basically saying “the federal government has the right to bypass the local police, militarily arrest people as they see fit, and cart them off indefinitely … where-as the local police must follow due process, 72 hour max detention time, etc, etc.” By making more and more things “military arrests”, the gov’t can toss due process out the window. This is f’ing scary.


blah blah December 23, 2011 at 12:45 pm

One more thing … If POTUS signs this law…Congress IS NOT EXEMPT. The POTUS could decide that for some reason the entire Congress is “terrorist” or “enemies of the state” or whatever, have them all rounded up by the military (again, bypassing the local police jurisdiction), and have them detained indefinitely in detention centers. This would effectively remove Congress (our House and Senate), making the United States a Military Dictatorship (the POTUS being the Commander in Chief, and as such head of the military). If POTUS signs this, and it becomes law, then we can first take it up with the Supreme Court, and hope they realize it’s unconstitutional and revoke it. (Which, God, I hope they would, b/c it’s basically taking power away from the judicial branch…the police…and putting it into the executive branch’s hands, the potus and military!) If that fails, then the citizenry can call for a constitutional convention which would force Congress to convene and strong-arm them into doing what the collective citizenry wants. If that fails…well, our armed service members took an oath to protect our country from all threats, both foreign AND domestic. However, they would have a crisis moment, b/c this would mean the military would have to openly oppose their Commander in Chief. And, seeing as going against your superior + mutiny in the military is a court-martial-able offense, the military folks would have to sit down and have a very long heart-to-heart with their conscience on whether they felt the POTUS and Congress were right in what they were doing. While we have career soldiers, they must always remember they are citizens first and soldiers second. They are citizen-soldiers. Even the POTUS is still just considered a citizen; our executive branch was designed to put the POTUS, a citizen, in charge of the military, so it would be made known that the military is never in charge of anything, they are but a servant of the people…the POTUS is a servant of the people, he represents the people. But with bills like these going through, the POTUS can “legally” turn his back on the people and claim dictatorship if the military wants to support him on it. Like I said…scary if you think about it.


Jackie Trident April 13, 2012 at 4:38 pm

It’s a bit unnerving that citizens can be held indefinitely without trial. Can you imagine if they got the wrong person and that person spent years in jail?


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