Detaining Citizens Under NDAA

The US government seems determined to have the power to do away with due process and Americans' right to a trial.

I am one of the lead plaintiffs in the civil lawsuit against the National Defense Authorization Act, which gives the president the power to hold any US citizen anywhere for as long as he wants, without charge or trial. In May, following a March hearing, Judge Katherine Forrest issued an injunction against it; this week, in a final hearing in New York City, US government lawyers essentially asserted even more extreme powers - the power to entirely disregard the judge and the law. Indeed, on Monday, August 6, Obama's lawyers filed an appeal to the injunction - a profoundly important development that as of this writing has been scarcely reported.

In the March hearing, the US lawyers had confirmed that yes, the NDAA does give the president the power to lock up people like journalist Chris Hedges and peaceful activists like myself and other plaintiffs. Government attorneys have stated on record that even war correspondents could be locked up indefinitely under the NDAA. Judge Katherine Forrest had ruled for a temporary injunction against an unconstitutional provision in this law - after government attorneys refused to provide assurances to the court that plaintiffs and others would not be indefinitely detained for engaging in first amendment activities. Twice the government has refused to define what it means to be an "associated force", and it claimed the right to refrain from offering any clear definition of this term, or clear boundaries of power under this law. This past week's hearing was even more terrifying: incredibly, in this hearing, Obama's attorneys refused to assure the court, when questioned, that the NDAA's provision - one that permits reporters and others who have not committed crimes to be detained without trial - has not been applied by the US government anywhere in the world - after Judge Forrest's injunction. In other words, they were saying to a US judge that they could not or would not state whether Obama's government had complied with the legal injunction that she had lain down before them.

US Senate passes 'indefinite detention' bill

To this, Judge Forrest responded that if the provision has indeed been applied, the United States government itself will be in contempt of court. Government attorneys also, in this hearing, again presented no evidence to support their position - and brought forth no witnesses.

I have mixed feelings about suing my government, and in particular, my president, over the National Defense Authorization Act. I voted for Obama. I even had an Obama dance; and I could not stop crying for joy and pride the night he was elected. I defended him for over two years.

But no longer. The US public often ignores his actual failings, and more importantly, entirely ignores how, when it comes to the "war on terror", the US government as a whole has been deceitful, reckless, even murderous. We lost nearly 3,000 people on 9/11. Then we allowed the Bush administration to lie and force us into war with a country that had nothing to do with that terrible day: we killed between several hundred thousand [PDF] and one million Iraqi citizens, caused vast harm to our own soldiers and gutted this nation's treasury for a war that never should have happened. Given these crimes, it is no wonder that Bush, Obama, and the US Congress appear now to be far more interested in enacting misguided, "boogieman in every corner" "war on terror" policies that distract citizens from investigating the truth about what we've done, and what we've become, since 9/11.

I, like many in this fight, am now afraid of my government. We have good reason to be. Due to the NDAA, Chris Hedges, Kai Wargalla, the other plaintiffs and I are squarely in the crosshairs of a "war on terror" that has been an excuse to undermine liberties, trample the US Constitution, destroy mechanisms of accountability and transparency, and cause irreparable harm to millions. Several of my co-plaintiffs know well the harassment and harm that they incur from having dared openly to defy the US government's narrative: court testimony included government subpoenas of private bank records of Icelandic Parliamentarian Birgitta Jonsdottir, Wargalla's account of having been listed as a "terrorist group", and Hedges' concern that he would be included as a "belligerent" in the NDAA's definition of the term - because he interviews members of outlawed groups as a reporter - a concern that the US attorneys refused on the record to allay. Other advocates have had email accounts consistently hacked, and often find their electronic communications corrupted in transmission - some emails vanish altogether - a now-increasing form of pressure that supporters of state surveillance and intervention in the internet often fail to consider.

I've been surprised to find that most people, when I mention that I am suing my president, Leon Panetta, and six members of Congress (four Democrats and four Republicans), thank me - even before I explain what I'm suing them over! And when I do explain the fact that I and my seven co-plaintiffs are suing over a law that suspends due process, threatens first amendment rights and takes away the basic right of every citizen on this planet to not be indefinitely detained without charge or trial, their exuberance shifts, and a deeper gratitude shines through their newly somber demeanours. But this fight has taken a personal toll on many of us, including myself. This winter, as I led the campaign to amend this lawsuit and was working over 80 hours per week to get everything ready, I suddenly ended up in the emergency room, and have subsequently endured six months of a debilitating neurological illness. Thus, I have relied on an international team of volunteers, whose courage and energy has led them successfully to garner support for a lawsuit that is an attempt to restore our most fundamental of liberties.

My government seems to have lost the ability to tell - and, perhaps, even to know - the truth about the Constitution any more. I and many others have not. We are fighting for due process and for the First Amendment; for a country we still believe in; and for a government that is still legally bound to its Constitution.

If that makes us their "enemies", then so be it. As long as they cannot call us "belligerents", lock us up and throw away the key - a power that, incredibly, this past week US government lawyers still asserted is their right to claim. Against such abuses, we will keep fighting.

I am no radical; I am simply a moderate Democrat, suing my out-of-control government. For the sake of people everywhere, I sincerely hope we win.

Via: "Al-Jazeera"

Obama’s Despotism and Kill List

By James E. Miller
Tuesday, May 29th, 2012
Courtesy Of "The Ludwig von Mises Institute"


Imagine the following situation:  a brutal dictator of some Middle Eastern country has devised a type of hit list on which he is able to place individuals who are to be assassinated on the government’s dime.  There is no due process given to whatever victim is chosen with the assistance of a few politically chosen advisers.  The target is unable to appeal his death warrant.  Not only can this privilege of unchallenged execution be carried out domestically but all around the world. With one word, this oppressor quite literally holds millions of lives in his hand.

In our present day, would such vile and crude discretion over human life go unchallenged by busybody international bureaucracies like the United Nations?  Would not the U.S. government, always on the unrelenting hunt for imaginary hobgoblins used to justify gargantuan defense spending, denounce such evil and pledge to eradicate it through awesome displays of force?

In Syria, President Bashar al-Assad has been violently clamping down government protestors and his regime stands accused of killing thousands of civilians.  Before a ceasefire was adopted between rebel forces and the Assad government back in April (the recent Houla massacre did away with that), Secretary of State Hillary Clinton described the Syrian President as a “war criminal.”  When Washington aided in the overthrowing of Libyan leader Muamar Gaddafi, President Obama announced victory by declaring “one of the world’s longest-serving dictators is no more.”  And who could forget when George W. Bush stated on the eve of the invasion of Iraq,

Unlike Saddam Hussein, we believe the Iraqi people are deserving and capable of human liberty. And when the dictator has departed, they can set an example to all the Middle East of a vital and peaceful and self-governing nation.

Indeed, Middle East dictators like Hussein, Assad, and Gaddafi committed plenty of atrocities.  They will find their due justice somewhere in the after life.  The real question is whether the United States government has the moral imperative to intervene in such affairs given its own conduct.  When the President or gung-ho Congressmen go in front of the television camera and denounce the heinous killings conducted by tyrants, are they not guilty of the same atrociousness?  One of the successes of the War on Perpetual Terror has been the still-widely believed fictive that the U.S. government wages war in a much more humane and “rights” sensitive manner than its enemies.  Instead, the last decade has seen such a rise in the unchecked authority of the Chief Executive that the office is hardy indistinguishable from that of the dictators it supposedly stands in opposition to.

Today in the New York Times, some details behind the President’s secret “kill list” were finally revealed.  In what can be construed as a blatant effort to appear “tough on terrorism” in an election year, Obama has crowned himself the sole decider in the determination process for who is placed on the list of future assassinations.

Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.

“He is determined that he will make these decisions about how far and wide these operations will go,” said Thomas E. Donilon, his national security adviser. “His view is that he’s responsible for the position of the United States in the world.” He added, “He’s determined to keep the tether pretty short.”

Authoritarians traditionally coerce those unfortunate enough to reside within the national borders of the dictatorship.  Only in some instances, usually involving border states, must they fear the leader of another country.  But not in America; not in today’s context of ever-present threats.  The U.S. President now has the assumed authority to order the killing of suspected terrorists in sovereign nations halfway across the globe.  In essence, the office of the President is now the world’s foremost dictatorship.  Every human being on the planet can be put to death upon the approval of just this one man.

Even more disturbing is the incredibly loose criterion used to judge if someone is suspected terrorist.  From the NYT article:

It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good. “Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs,” said one official, who requested anonymity to speak about what is still a classified program.

Just from guilty by association, someone can find themselves on the end of CIA drone strike.  This disgustingly loose standard for rendering what is an unquestionable death sentence has resulted in hundreds of civilian deaths in Pakistan alone; including 168 children.  There are few estimates for civilian deaths in Yemen or Somalia caused by drone strikes.  The CIA and top administration officials claim that “collateral damage,” the Orwellian term for unintended murder, is actually quite low.  This presumption is doubted by experts however as the article explains:

This counting method may partly explain the official claims of extraordinarily low collateral deaths. In a speech last year Mr. Brennan, Mr. Obama’s trusted adviser, said that not a single noncombatant had been killed in a year of strikes. And in a recent interview, a senior administration official said that the number of civilians killed in drone strikes in Pakistan under Mr. Obama was in the “single digits” — and that independent counts of scores or hundreds of civilian deaths unwittingly draw on false propaganda claims by militants.

But in interviews, three former senior intelligence officials expressed disbelief that the number could be so low. The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties.

“It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”

The NYT article is just a glimpse into the imperial, nontransparent, and frankly immoral methods by which the U.S. government now conducts war.  Due process is a relic of the past.  Little to no regard is given to those placed on the President’s “kill” list.  There is little effort made to even determine if “suspected militants” are indeed militants after they are slaughtered by unmanned drones.   After a century and a half long crusade, the United States President finds himself in a position to unilaterally render final judgment to anyone on Earth without repercussion.  If that isn’t uncontrolled despotism, nothing is.

And yet none of these humanity crushing efforts will actually keep the country safe in the end.  The constant bombing and killing of innocents only stokes the flames of hatred toward the U.S.  As Glenn Greenwald observes in regard to the twisted logic behind American foreign policy:

we have to keep doing things we know will result in large-scale civilian deaths in order to stop the Terrorists, who are really terrible because they keep killing civilians.

War will always be a means for the state to ultimately usurp more power and wealth from the population.  The patriotism invoked by campaigns for blood eases up the normal reluctance many have toward increased government pilfering.  As long as public officials can convince the citizenry they are fighting to keep “the people” secure, the feebleminded will happily pay more taxes and suffer from the inflationary rising of prices.  Their loyalty to the state makes them the perfect mules to be worked till exhaustion.  Murray Rothbard was absolutely correct when he described the true nature of war:

In other words, if let’s say, Paraguay and Brazil are going to get into a war, each State – the Paraguayan government and the Brazilian government – is able to convince their own subjects that the other government is out to get them and loot them and murder them in their beds and so forth, so they are able to induce their own hapless subjects to fight against the other State, whereas in actual practice, of course, it is the States that have the quarrel, not the people. The people are outside the quarrels of the State and yet the State is able to generate this patriotic mass war hysteria and to call everybody up to the colors physically and spiritually and economically and therefore, of course, aggrandize State power permanently.

Manufactured fear and apathy toward the rights of others have allowed the Office of the Presidency to become the judge, jury, and executioner to all the world.  For those who mistakenly believed in the state as the enforcer of goodness and decency, they only need to blame themselves.

James E. Miller holds a BS in public administration with a minor in business from Shippensburg University, PA. He is the Editor in Chief at the Ludwig von Mises Institute of Canada and a current contributor to his hometown newspaper, the Middletown Press and Journal.

How Extremism Is Normalized

John Brennan and President Obama (Credit: Pete Souza/The White House)


The Obama Administration Has Converted Once Unthinkable Government Claims Into Permanent Political Fixtures

BY GLENN GREENWALD
WEDNESDAY, MAY 30, 2012 09:05 AM EDT
Courtesy Of "Salon"

(updated below – Update II – Update III)

There is one important passage from yesterday’s big New York Times article on President Obama’s personal issuance of secret, due-process-free death sentences that I failed to highlight despite twicewriting about that article. The fact that I did not even bother to highlight it among all the other passages I wrote about is itself significant, as it reflects how rapidly true extremism becomes normalized:

That record, and Mr. Awlaki’s calls for more attacks, presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial?

The Justice Department’s Office of Legal Counsel prepared a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.

Mr. Obama gave his approval, and Mr. Awlaki was killed in September 2011, along with a fellow propagandist, Samir Khan, an American citizen who was not on the target list but was traveling with him.

Please just re-read that bolded part. This is something that we already knew. The New York Times‘ Charlie Savage had previously reported that Obama OLC lawyers David Barron and Marty Lederman had authored a “secret document” that ”provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war” (“The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal”). Attorney General Eric Holder then publicly claimed: “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” Both of those episodes sparked controversy, because of how radical of a claim it is (Stephen Colbert brutally mocked Holder’s speech: “Due Process just means:  there’s a process that you do”).

But that’s the point: once something is repeated enough by government officials, we become numb to its extremism. Even in the immediate wake of 9/11 — when national fear and hysteria were intense — things like the Patriot Act, military commissions, and indefinite detention were viewed as radical departures from American political tradition; now, they just endure and are constantly renewed without notice, because they’ve just become normalized fixtures of American political life. Here we have the Obama administration asserting what I genuinely believe, without hyperbole, is the most extremist government interpretation of the Bill of Rights I’ve heard in my lifetime — that the Fifth Amendment’s guarantee that the State cannot deprive you of your life without “due process of law” is fulfilled by completely secret, oversight-free “internal deliberations by the executive branch” — and it’s now barely something anyone (including me) even notices when The New York Times reports it (as the ACLU’s Jameel Jaffer asked yesterday: “These Dems who think executive process is due process: Where were they when Bush‬ needed help with warrantless wiretapping?” — or his indefinite detention scheme?)

A couple of months ago, I spoke at Purdue University in Indiana about civil liberties in the post-9/11 era, and several high school students drove from Kentucky to attend. They were aspiring journalists who worked on their high school newspaper and were battling their county School Board officials who were attempting to censor some of their articles on gay equality; they interviewed me after my speech in the hope that I would provide critical quotes about those officials (which I happily supplied). One of the student-journalists, a girl in the 11th grade, said something to me that was striking, something I knew rationally but had not quite internalized viscerally: she pointed out that much of my speech was grounded in post-9/11 erosions of civil liberties, but that for people her age — she was 6 years old at the time of the 9/11 attack — the post-9/11 era is basically all they know.

The post-9/11 era comprises the entirety of their political experience. They have no different American political culture to which they can compare it, at least from personal experience. The post-9/11 U.S. Government is the only one they know. The rights that have been abridged in the name of Terrorism are ones they never experienced, never exercised, and thus do not expect.

Every year that these assaults on core liberties are entrenched and expanded further — the Firth Amendment guarantee of due process “can be satisfied by internal deliberations in the executive branch” – the more normalized they become, the more invulnerable to challenge they are, the more unlikely it is that they will ever be reversed. In 2006, Al Gore gave a speech on the Bush/Cheney assault on the Constitution and asked: “If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can’t he do?” What prompted Gore’s denunciation was mere eavesdropping and detention without judicial review. That’s no longer controversial. Now we have this question: if the U.S. President can openly declare the power to order even the nation’s own citizens executed by the CIA in total secrecy, without charges or a whiff of transparency or oversight, what can’t he do?

* * * * *

I was on Democracy Now this morning discussing all of this, as well the rejection by the British High Court this morning of Julian Assange’s appeal of his extradition order to Sweden, and will post those segments here when they are available. In the meantime, there are two related articles on all of this worth reading:

(1) New York Times Editorial Editor Andy Rosenthal today writes:

Whenever I raise questions about President Obama’s “targeted killing” policy, and the cavalier way his aides dismiss criticism of it, administration officials tell me that I wouldn’t worry so much if I understood the program’s inner workings. But the more that comes to light, the more worried I feel.

He adds that “if Mr. Obama wants to authorize every drone strike, fine—but even the president requires oversight (remember checks and balances?) which he won’t allow.” And then the key conclusion:

Apologists for the president’s “just trust me” approach to targeted killings emphasize that the program is highly successful and claim that the drone strikes are extraordinarily precise. John Brennan, the president’s counter-terrorism adviser, said in a recent speech that not a single non-combatant had been killed in a year of drone strikes in Afghanistan and Pakistan. And today’s Times article quoted a senior administration official who said that civilian deaths were in the “single digits.”

But it turns out that even this hey-it’s-better-than-carpet-bombing justification is rather flimsy. The Times article says “Mr. Obama embraced a disputed method for counting civilian casualties …It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”

The logic, such as it is, is that people who hang around places where Qaeda operatives hang around must be up to no good. That’s the sort of approach that led to the false imprisonment of thousands of Iraqis, including the ones tortured at Abu Ghraib. Mr. Obama used to denounce that kind of thinking.

That’s not only something Mr. Obama used to denounce, but also his Democratic and progressive followers, who are largely — and disgracefully — silent about all of this, when they’re not cheering it (the very first comment to Rosenthal’s post demands that he stop criticizing Obama on the ground that doing so helps Romney).

(2) The Philadelphia Daily News‘ Will Bunch makes a very provocative though important point about that last passage. As Iwrote about yesterday, the most significant new revelation from The New York Times article is that the Obama administration now considers “all military-age males in a strike zone as combatants,” on the ground that such individuals “are probably up to no good.” As Bunch points out, this was the exact language used by George Zimmerman in his 911 call about Travyon Martin (“it looks like he’s up to no good”). Moreover, at exactly the time that President Obama was poignantly observing that Martin looks like a son that Obama might have had, he was classifying all males in the vicinity of suspected Terrorists in Pakistan, Yemen and Somalia — including teenagers — as “militants” and “combatants,” and deeming them fair game to be killed solely by virtue of their physical location, gender and age. Those are someone’s actual sons. Bunch writes: “Since they chanted ‘Drill, baby, drill!’ at the 2008 RNC, maybe they could chant ‘Kill, baby, kill’ at the 2012 DNC when they re-nominate President Obama.”

UPDATE: Here’s the Democracy Now segment I did this morning on Obama’s kill list (can also be seen here):

UPDATE II: The Washington Post today points out the obvious:

Across the vast, rugged terrain of southern Yemen, an escalating campaign of U.S. drone strikes is stirring increasing sympathy for al-Qaeda-linked militants and driving tribesmen to join a network linked to terrorist plots against the United States.

After recent U.S. missile strikes, mostly from unmanned aircraft, the Yemeni government and the United States have reported that the attacks killed only suspected al-Qaeda members. But civilians have also died in the attacks, said tribal leaders, victims’ relatives and human rights activists.

“These attacks are making people say, ‘We believe now that al-Qaeda is on the right side,’ ” said businessman Salim al-Barakani, adding that his two brothers — one a teacher, the other a cellphone repairman — were killed in a U.S. strike in March.

Who would have guessed that continually dropping bombs on a country using remote-controlled sky robots and killing their civilians would breed hatred and a desire to attack back? Not only do these constant Obama attacks extinguish the lives of innocent people, but they also exacerbate the very threat they are ostensibly designed to address.

 UPDATE III: Some unknown citizens decided to use the White House petition system today to start a petition asking for the creation of a “Do-Not-Kill” list, “in which American citizens can sign up to avoid being put on the president’s ‘kill list’ and therefore avoid being executed without indictment, judge, jury, trial or due process of law.”