December 21, 2011
Goodbye Due Process, Hello Indefinite Detention
Thursday, Dec. 15, was the 220th anniversary of the ratification of the Bill of Rights, a day that deserved to be celebrated like the Fourth of July, with flag-waving and fireworks.
Instead, Congress marked the occasion by giving final approval to the Constitution-shredding National Defense Authorization Act of 2012 (S. 1867/H.R. 1540) and sending it to White House where it awaits the president’s signature or veto. The vote was a resounding 86-13. Kansas Republican Senator Jerry Moran did not vote. For the Senate vote click here.
“These provisions are inconsistent with the liberties and freedoms that are at the core of the system our Founders established,” wrote Sen. Al Franken, D-Minn., in an editorial in the Huffington Post, explaining why he voted against the measure he originally supported.
“With this defense authorization act, Congress will, for the first time in 60 years, authorize the indefinite detention of U.S. citizens without charge or trial, according to its advocates,” Franken stated. “This would be the first time that Congress has deviated from President Nixon's  Non-Detention Act. And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.”
“Yesterday was the anniversary of the ratification of the Bill of Rights and this wasn’t the way to mark its birthday,” Franken observed.
No, it wasn’t appropriate. But talk about timing! If one were a conspiracy theorist one might surmise that pushing a bill through Congress that essentially strips away such constitutionally protected rights as trial by jury and habeas corpus had been brilliantly orchestrated to arrange for the vote to take place the very day it did.
Said conspiracy theorist might first note the schedule. The House version – H.R. 1540 – was dropped in the hopper in April by Rep. Buck McKeon, R-Calif., and passed by that chamber May 26. However, the opposition didn’t gain traction until just before Thanksgiving when Senators John McCain, R-Ariz., and Carl Levin, D-Mich., introduced the Senate version, S. 1867, and put the 2012 NDAA on a greased track to the statute books.
It didn’t take long. S. 1867 was introduced Nov. 15, approved by the Senate Dec. 1 and sent to a conference committee to be merged with H.R. 1540. Two weeks later, on Dec. 14, the Republican-controlled House approved the 1,844-page Conference Report by a 283-136 vote; the Senate followed suit next day. For the House vote click here.
Some critics have characterized the date of passage as “ironic” and “coincidental.” But after taking note of the schedule, a conspiracy theorist might recall that ramming contentious bills through during the holiday season is something Senate Leader Harry Reid and his allies on both sides of the aisle specialize in. Back in 2009 it was ObamaCare. Last year, during the Lame Duck session, it was the FDA Food Safety Modernization Act.
This year it’s the 2012 NDAA, known casually as the Indefinite Detention Act. What better day – a conspiracy theorist might conclude -- to wrap up such a measure than on the birthday of the Bill of Rights itself. And if you can get Tea Party Republicans to fall in line so much the better. This year there was no need for Reid to engage in his customary behind-the-scenes maneuvering and arm twisting since almost every Republican in Congress was in full support – including most Tea Party members.
It was a near total, bipartisan takedown of the Constitution. All in the name of fighting “terrorism,” which is not even properly defined.
In a recent article I described the 2012 NDAA as “arguably one of the most important – and dangerous – bills ever presented to Congress for consideration.”
I was wrong. There’s no “arguably” or “one of” about it. In terms of its threat to liberty, it is singly the most dangerous bill that Congress has approved in this or many years, maybe ever.
According to ACLU legislative counsel Chris Anders, the bill gives this president – “and every future president – the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.”
All the major intelligence agencies (the Secretary of Defense, the Director of the FBI, the Director of National Intelligence, the White House Advisor for Counterterrorism, and the DOJ National Security Division head) have declared their opposition to the bill and its indefinite detention authority,” the ACLU reported.
Waiting for the Nail Gun
There’s been a crescendo of outrage over the past three weeks from right to left on the political spectrum. In a piece posted at LewRockwell.com, libertarian columnist Eric Peters asks the chilling question:
Do you suppose cows have any idea what’s coming as they’re marched down the chute? Or do they stare with bovine indifference at the tail and hind quarters in front of them, until they’re suddenly – and very briefly – startled by the man with the nail gun?
Perhaps Americans will – likewise too late – ask themselves What Happened in the very near future. Perhaps just after the midnight knock comes and they are taken away into the night.
It is not an exaggeration.
America is now on the cusp of becoming a state that does exactly such things; things exactly like the things done by 20th century horror shows such as NS Germany or Stalin’s USSR. Literally.
Not “this is where it might lead” or “the tendency is similar.” Exactly, literally, the same thing. The only difference is that it awaits being done on a mass scale. But the power to do it openly – brazenly – has been asserted.
And is about to be sanctified by law.
Don’t think for one moment this couldn’t be used against a Tea Party activist or, for that matter, a picket sign holder at an Occupy Our Town camp. Peters warns:
The wording is such that any shyster lawyer for the government will be able to draw up a memorandum at some point in the near future equating, say, criticism of the federal government’s policies in the Middle East with “substantially supporting” the enemies of the United States. As defined by the United States.
That is, as defined by the government.
On the left, liberal Matt Taibbi voices similar concerns at Rolling Stone. Pointing out that there are two “very large protest movements going on right now” – the Tea Party and the Occupy Movement. “What if one of them is linked to a violent act”? Taibbi asks. “What if a bomb goes off in a police station in Oakland, or an IRS office in Texas? What if the FBI then linked those acts to Occupy or the Tea Party?” He continues:
You can see where this is going. When protesters on the left first started flipping out about George Bush’s indefinite detention and rendition policies, most people thought the idea that these practices might someday be used against ordinary Americans was merely an academic concern, something theoretical.
But it’s real now. If these laws are passed, we would be forced to rely upon the discretion of a demonstrably corrupt and consistently idiotic government to not use these awful powers to strike back at legitimate domestic unrest.
To counteract the impact writers like Peters and Taibbi might have on pubic opinion, supporters of the measure have been active in damage control – and like the opponents they come from all points on the political spectrum.
You can’t get more “progressive” than the Center for American Progress – a D.C.-based think tank and a staunch ally of the Obama White House, funded in part by George Soros. The center’s position on the 2012 NDAA is that the claims made about the legislation by its foes are overblown, that there are no plans for a military takeover by the present administration, and Obama would never, ever dream of improperly using the powers being granted him.
“We certainly know that in the current hyperpartisan debate, outrage sells, but a more sober analysis reveals that the NDAA establishes no new detention authority,” writes Ken Gude, managing director of the center’s National Security team. “The underlying legislation does establish some military detention power, but it gives the president, not Congress, discretionary authority over when and where to use it in the fight against al Qaeda. Yes, a future president may interpret that authority differently, but that is both a fight for another day and one that will not hinge on the 2012 NDAA.”
Florida “Tea Party Senator” Marco Rubio was so dismayed by the opposition his Libertarian, Republican, and Democrat constituents were expressing that he drafted a disinformation letter to quiet their concerns. The letter appeared in my inbox, having been forwarded to me by a Tea Partier, so it’s evidently going the rounds. The Brevard Times has published it online. Click here to read.
Rubio is apparently convinced that the bill would not allow the U.S. military “to perform law enforcement functions on American soil because of the authority conferred under Sections 1031 and 1032 of the Act.” He continues:
“Section 1031 of this act merely [!} affirms the authority that the president already has to detain certain people pursuant to the current Authorization for the Use of Military Force, in fact, this same section of the bill specifically states that nothing stated in Section 1031 is intended to expand the president’s power.”
Rubio’s arguments echo those of the bill’s sponsors and have been contradicted by many who have studied the measure in depth, such as Rep. Tom McClintock (R-Calif.)
Before the final House Dec. 14 vote, McClintock spoke on the floor against Sections 1031 and 1032, then posted his remarks on his website. A major problem is that there are no exact definitions given for terms like “substantially supporting” al Qaeda or “associated forces.”
This section [Sec. 1031] 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. The question is, do we really want to find out?
McClintock goes even further by flatly denying the notion that the bill “merely” affirms authority the president already has.
But wait. There is no existing law that gives the President the power to ignore the Bill of Rights and detain Americans without due process. There is only an assertion by the last two presidents that this power is inherent in an open-ended and ill-defined war on terrorism. But it is a power not granted by any act of Congress. At least, not until now. (Emphasis added)
What this bill says is, “What Presidents have only asserted, Congress now affirms in statute.”
Not If, but When
For several weeks Obama played coy by threatening to veto the legislation, a stance that may have caused some members of Congress to support the bill, thinking they were “defying” the president. With the voting over, the White House recently issued a statement, which Mike Adams (Health Ranger) slams as “one of the most astonishing and Big Brother-ish examples of doublespeak yet observed coming out of the Obama administration:”
"We have concluded that the language does not challenge or constrain the President's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President's senior advisors will not recommend a veto..."
Well,why not. Let’s give the president with all the power he wants to fight those terrorists in the Tea Party, the Occupy Movement, or wherever they’re hiding. When it comes to waging a Never-Ending War on Terror, why should an old document like the Constitution – with such quaint legal notions as due process or the right to an attorney or a trial – be allowed to stand in the way.
NOTE: Senators Voting No on the Conference Report were Rand Paul, R-Ky., who led the opposition, fighting the inevitable as best he could; Mike Lee, R-Utah; Tom Coburn, R-Okla;; Mike Crapo, R-Idaho; Jim Risch, R-Idaho; James DeMint, R-S.C.; Al Franken, D-Minn.; Tom Harkin, D-Iowa; Jeff Merkley, D-Ore.; Ron Wyden, D-Ore.; Dick Durbin, D-Ill.; Ben Cardin, D-Md.; and Bernie Sanders, I-Vt.. It was a slightly better showing by the opposition than the Senate’s Dec. 1 vote of 93-7.
- Sarah Foster: Is This
the End of the U.S. Constitution? Dec. 14, 2011
2 - Jonathan Emord: Battlefield America: Dec. 12, 2011
3 - Laurie Roth: Military Can Arrest and Hold U.S. Citizens: Dec. 9, 2011
4 - Chuck Baldwin: No Wonder America's Founders Distrusted Standing Armies: Dec. 1, 2011
5 - J.B. Williams: Is Defense Authorization Act Treasonous? Dec. 6, 2011
6 - Al Duncan: War, Part 6: May 20, 2011
- ACLU: Senators
Demand the Military Lock Up American Citizens in a "Battlefield"
They Define as Being Right Outside Your Window: Nov. 23, 2011
2 - ACLU: Senate Rejects Amendment Banning Indefinite Detention: Nov. 29
3 - Glenn Greenwood: Three Myths about the Detention Bill: Dec. 16, 2011. For updates, check Greenwald’s blog at Salon.com
4 - Glenn Greenwood: Obama to Sign Indefinite Detention Bill into Law: Dec. 15
5 - Glenn Greenwood: Congress Endorsing Military Detention, a New AUMF: Dec. 1
6 - Dr. Andrew Bosworth: Treason from Within: The Road Towards a Police State: Global Research.ca: Nov. 28, 2011
� 2011 Sarah Foster - All Rights Reserved
Sarah Foster is a political researcher and freelance writer in Sacramento, Calif. She holds a B.A. in anthropology from U.C., Berkeley and a M. A in folklore-mythology from U.C.L.A. A regular contributor to NewsWithViews.com, her writings have also appeared in WorldNetDaily, Reason Magazine, Orange County Register, and other libertarian/conservative publications.
Sarah can be reached at: email@example.com.