Last week was a landmark week for the erosion of your civil liberties. While mouth breathing Americans joined with doomsday preppers and semi-automatic wielding quail hunters to dominate the airwaves with outrage over the perceived loss of their rights under the 2nd Amendment, the US government pressed ahead with measures that quietly dismantle the 5th.

On Monday, NBC News published an unclassified Justice Department document indicating that suspected al-Qaeda operators or their “associated forces” may be lawfully targeted and assassinated, even if they are US citizens, and even if they are not thought to be actively plotting an attack.

Then on Wednesday, the Obama Administration was back in court to defend its right to use the United States military against its own citizens. Section 1021 (b) (2) of the National Defense Authorization Act, signed by Obama, gives the military the right to arrest and indefinitely detain US citizens without due process of law.

The exact wording of the provision is as follows:

“A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces”

Plaintiffs in the case Hedges v. Obama (as in journalist and author Chris Hedges) argue that several terms including “substantially supported”, “associated forces” and “belligerent act” are overly vague. If they wanted to, the U.S. government could interpret them to include journalists who report on terrorist groups and political activists critical of the Obama administration’s policies.

The provision also states:

“Detention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force.”

The term “the end of hostilities” is hauntingly open-ended. Attorney Carl Mayer pointed out Wednesday that we are on day 4,163 of an open ended war against al-Qaeda. There are pitifully few signs that the defense industry will ever turn its $350 million F-22 fighters into $350 million plowshares anytime soon.‘Hostilities’ could arguably last forever.

Hedges described the NDAA as “The final battle between the restoration of due process and the imposition of a military state.”

Meanwhile, the corporate media attended to Beyonce’s sexy performance and incredible…voice. Nary a peep was mentioned about the NDAA case. The only news agencies at the courthouse were Democracy Now, RT, HispaniTV and rumor has it Reuters.

The panel discussion with the plaintiffs was covered exclusive by independent media outlets; again Democracy Now, an Occupy media presence, and myself covering for WBAI Radio in NY, the The Young Turks Online Network, and you.

You can find the full panels online. I was able to snag this powerful backstage interview with one of the plaintiffs. You may recognize him from a little controversy involving what’s come to be known as the Pentagon Papers. That’s right, legendary whistle blower Daniel Ellsberg said the following:

“They are reversing freedoms we’ve had since the Magna Carta.”

‘They’ve made (Wikileaks founder) Julian Assange an enemy of the state… and for that matter they really think of the public in those (same) terms.”

“The President hasn’t formally legalized the death squad part but (he) is pronouncing it as a proud aspect of his functions.”

The whole interview is here:

The Fifth Amendment:

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 offense 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.

As of right now, a federal court in New York had issued a permanent injunction blocking the indefinite detention powers of the NDAA but the injunction was stayed pending Wednesday’s appeal by the Obama Administration.

Stay tuned.

I can't say that this makes me feel secure at all:

Congress stripped a provision Tuesday from a defense bill that aimed to shield Americans from the possibility of being imprisoned indefinitely without trial by the military. The provision was replaced with a passage that appears to give citizens little protection from indefinite detention.

The amendment to the National Defense Authorization Act of 2013 was added by Sen. Dianne Feinstein (D-Calif.), but there was no similar language in the version of the bill that passed the House, and it was dumped from the final bill released Tuesday after a conference committee from both chambers worked out a unified measure.

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

Spokespeople for Senate committee leaders did immediately answer why the amendment was stripped, but pointed to the language that replaced it:

Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

The new provision appears to do little, because the Supreme Court has already declared that the writ of habeas corpus -- requiring that someone be presented to a judge -- applies to all people. The more difficult part of whether people deserve a trial remains unsettled, and the new provision does not appear to resolve it.

I don't want to be doomsaying about this, and I've had some unsettling conversations about the NDAA with other liberals, who tend to want to believe that it's not as bad as it seems. But I can't be that sanguine. It's a clear violation of the principles upon which we founded this country. And for as generous as we want to believe this particular administration, this is toothpaste that will be difficult to put back in the tube and we have no such guarantees that future administrations will have our trust.

Oh, I'm sorry. Is that headline a little strong? Maybe because I am just furious over this, as everyone should be. Compare and contrast, kids:

The Senate on Tuesday passed a massive, wide-ranging $631 billion defense authorization bill that restores threatened Pentagon biofuels programs, issues new sanctions against Iran and changes U.S. detention policy for American citizens.

The National Defense Authorization Act (NDAA) passed the Senate unanimously 98-0 after the bill was debated for five days and hundreds of amendments were considered on the floor.

That's not even counting the so-called "black budget," of course. Have you ever seen a politician draw the line on the defense budget? I can't remember it ever happening.

Now consider this:

WASHINGTON — President Obama plans to ask Congress for about $50 billion in emergency funds to help rebuild the states that were ravaged by Hurricane Sandy, challenging deficit-minded lawmakers while worrying regional leaders, who complained Wednesday that it was not enough.

The White House will send the proposal to Capitol Hill this week, and while the final sum is still in flux, it should be between $45 billion and $55 billion, according to officials briefed on deliberations over it.

That falls significantly short of the $82 billion sought by New York, New Jersey and Connecticut to clean up storm damage, as well as to improve infrastructure to prepare for future storms.

Both Democratic and Republican lawmakers from the region quickly expressed disappointment in the pending request and lobbied the administration to increase it before sending it to Congress. “While $50 billion is a significant amount of money, it unfortunately does not meet all of New York and New Jersey’s substantial needs,” Senators Charles E. Schumer and Kirsten E. Gillibrand of New York and Frank R. Lautenberg and Robert Menendez of New Jersey, all Democrats, said in a joint statement.

Fifty billion dollars? An insult. We lost $18 billion in disappearing pallets of cash in Iraq, and no one ever gave a crap except dirty hippies like bloggers. Now this is what the administration offers to rebuild the freakin' East Coast?

Shame on Obama, and shame on all the politicians and media clowns cooperating in playing this deficit game. The richest country in the world can't clean up after itself because austerity! (Mind you, New York City is the economic engine of the country, home to Wall Street and the entertainment industry.) Why, if we adequately funded the recovery, that might clue ordinary people in to the economic shell game that's going on before their eyes, aided and abetted by a complicit media.

And we can't have that. [Via David Dayen.]

Calling it an act of Congress that infringed on constitutional rights, a New York federal judge blocks NDAA, the bill that allows Americans to be held indefinitely on vague grounds. Yes, we still have some principled judges left:

A federal judge is blocking legislation authorizing the government to indefinitely detain without trial an “individual who was part of or substantially supported” groups “engaged in hostilities against the United States or its coalition partners.”

Tuesday’s decision by a New York federal judge halts a key terror-fighting feature of the 2011 National Defense Authorization Act and is a blow to the Obama administration. The government urged U.S. District Judge Katherine B. Forrest not to adopt a nationwide ban on the measure, saying the move would be “extraordinary” and “unwarranted” (.pdf).

But the judge, ruling in a case brought by journalists and political activists, said the law was too vague and did not provide clear guidance on whom the government could indefinitely detain.

Continue reading »

Two days before the deadline, President Obama signed a defense spending bill into law - while admitting he has "serious reservations with certain provisions" related to how suspected terrorists are held and questioned.

In a written statement, Mr. Obama makes clear he objects to sections in the National Defense Authorization Act that "regulate the detention, interrogation and prosecution of suspected terrorists."

Despite his objections, Mr. Obama says he signed the measure, known by its initials NDAA, because it authorizes needed funding to defend the nation, support the military and renew "vital national security programs."

Among the provisions to which the president objects is a grant of permission for the indefinite military detention of terror suspects by the military.

Mr. Obama said he didn't ask for such authority and doesn't want it.

Flat out, the provisions suck, no matter what kind of rationalizations put on them. They codify measures put in place by the Bush administration that run counter not only to our Constitution, but to the notion of the rule of law since the Magna Carta.

It's all well and good that Obama says he won't use it with his signing statement (copy of statement in full at ThinkProgress) and the pragmatic side of me acknowledges that it would be a huge political minefield to send back the larger NDAA two days before the deadline (Obama hates the troops!) because of some discrete provisions that can be dealt with separately later. So I'm not going to join the crowd outraged by this move, as heinous as I think it is. Simply put, those provisions shouldn't have been in the NDAA to start with but the larger budgetary requirements made a whole lot of Democrats who have expressed dismay about those provisions go ahead and vote for it. I heard Debbie Wasserman Schultz on The Randi Rhodes Show using that exact calculus with guest host Nicole Sandler, but assuring Nicole that she was already planning on working with other Dems to repeal those provisions as soon as Congress reconvenes.

However, that's some really difficult toothpaste to squeeze back into the tube. For a measured, sensible look at both sides of the NDAA debate, see this two part essay here and here. Quote:

The New York Times editorial on the NDAA is, unfortunately, representative of many of the false alarms being sounded about the legislation. The Times complains that the NDAA “ban[s] . . . spending any money for civilian trials for any accused terrorist,” “strip[s] the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists,” and “give[s] future presidents the authority to throw American citizens into prison for life without charges or a trial.”

If this were an accurate description of the final legislation, it would be even more extreme than the House-passed version, which the President’s senior advisers recommended that he veto. But the bill the President just signed does none of these things. (For a comprehensive run-down of what the bill includes, see this post from Bobby Chesney and Ben Wittes.) Yes, the House-passed bill would have comprehensively prohibited expenditures for criminal trials of terrorism suspects; but the Administration successfully insisted that the conferees strip that provision from the final bill. As for law enforcement authorities, the conferees added the provision quoted above, expressly confirming that “[n]othing in [section 1022] shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person.” Therefore the bill cannot possibly be read to “strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists.”

And, as to lifetime detention of U.S. persons, the bill by its very terms (thanks to an amendment introduced by Senator Feinstein) confirms what would have been the proper reading anyway—namely, that its detention authorization provision (section 1021) does not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” For good measure, section 1022 also provides that its purported presumption of military detention “does not extend to citizens of the United States.” The NDAA therefore leaves open, and does not affect, the unresolved questions raised in the Padillaand al-Marri cases–i.e., whether the AUMF authorizes the long-term military detention of U.S. citizens and lawful resident aliens who are apprehended in the United States. Those questions will not be raised as long as President Obama is in office, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”

Benjamin Wittes at the Lawfare Blog has written a terrific explainer on what the NDAA does, and does not do.

Key point rebutting the contention that the indefinite detention provisions apply to United States citizens:

Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.”

And this point regarding Guantanamo Bay facilities:

Sections 1026 and 1027 prevent the use of federal funds for building detention facilities in the United States or transferring Guantanamo detainees to domestic facilities or releasing them into the United States. It effectively continues a congressional policy of preventing more Article III criminal trials of Guantanamo detainees and preventing the construction of alternative facilities that would enable President Obama to fulfill his promise to shutter Guantanamo.

I have argued for a very long time that Congress, not the President, was responsible for the failure to close Guantanamo, mostly to deaf ears. This bill passed with a huge bipartisan majority in both houses, so I'm unsure how anyone but Congress can own this now.

Wittes has more on that later in the post:

Yes. The NDAA does three things that make it impossible, at least during fiscal year 2012, for President Obama to fulfill his promise to close the detention facility at Guantanamo Bay. It forbids him to spend any money readying an alternative site to house detainees in the United States. It forbids transfers of detainees to the United States. And it makes it difficult–though a little less difficult than it is under the current spending restrictions–to transfer detainees to third countries. To close Guantanamo, the administration would have to transfer a bunch of detainees to other countries, and it would have to move a bunch of other detainees to some alternative facility. So as long as these restrictions exist in U.S. law, Guantanamo is going nowhere.

These restrictions, it is worth noting, are already in current law. So while they are (in our opinion) bad ideas, they are by no means new the NDAA.

Finally, there is this bit which should actually please civil libertarians. It was added as part of the negotiation after the President's veto threat:

Continue reading »

The blogosphere has been ratcheting up the outrage factor all weekend to the curiously sedate response from the mainstream media over last week's vote on the National Defense Authorization Act and the disturbing provisions within that destroy the basic civil liberties upon which this country was founded.

The NDAA contains a number of highly problematic detention provisions that undermine the US' traditions, commitment to human rights and security. Those provisions solidify indefinite detention, militarise US criminal justice and counter-terrorism policy, and entrench Guantanamo, making it more difficult to close the prison. The legislation paradoxically goes much further on these issues than anything Congress did during the Bush administration. More than a decade after 9/11, lawmakers appear intent on institutionalising and expanding the "War on Terror", rather than scaling it back.The NDAA, for the first time, legislates indefinite military detention. Under the bill, any person who is "part of" or who "substantially supports" al-Qaeda, the Taliban, or an "associated" group may be imprisoned without being charged with a crime.

Lower courts, to be sure, have construed an existing statute, the 2001 Authorisation for Use of Military Force (AUMF) to provide a similar detention power. But the NDAA for the first time expressly codifies indefinite detention, making this power more difficult to challenge and more easy to wield aggressively.

The NDAA also for the first time mandates the military detention of covered terrorism suspects, defined broadly to include members of al-Qaeda and associated groups who are planning or who have participated in attacks against the United States. Under the NDAA, the military detention of those covered terrorism suspects is no longer merely an option but a requirement. The NDAA thus creates a new and unprecedented default rule of military detention, usurping the authority traditionally vested in civilian law enforcement. It flouts the principles on which the US was founded: that civilian authority must be supreme over the military, and that even those accused of the most serious crimes are entitled to a trial and the other protections of the Bill of Rights.

Much debate has focused on whether the NDAA applies to individuals arrested in the US, including US citizens. (US citizens are excluded from mandatory detention, but not from the NDAA's general military detention provisions). On this point, the NDAA is ambiguous and purports not to alter existing law. The courts, however, have never conclusively determined whether existing law (i.e., the AUMF) allows domestic military detention.

Now this isn't the first time that Congress has passed a law that has stripped civil rights from a segment of the population in the name of national security (internment of the Japanese), but it's disconcerting to find this particular bill not only voted by a large majority (89 Senators--when was the last time you saw that?) but had President Obama walk back his veto threat. Both the inclusion of this segment and the veto threat are all being gamed for political purposes. The very foundation of our country as hostage for the upcoming election. That's sick. There's a segment of Democrats rationalizing this or trying to explain it away as Chris Coons did in the above segment from Up with Chris Hayes, but I think I fall in line with Digby on this:

[I]t's about enshrining the principle --- the codification of irrational reactions made during the fog of war. Our political culture (including the congress the pundits and even the public) is constructing a police state.

Dianne Feinstein--usually a reliable national security vote--has written legislation to nullify the indefinite detention aspect of the bill. It's a good first start and worth your time to call your elected officials to support. This will also go through the court system, of that there is no doubt. But the collateral damage that will be done to necessitate court action is unacceptable.

While I hesitate to write posts about what I think should happen, in this case I think it's warranted as a discussion-starter about how to keep the momentum moving in our direction.

With that in mind, here are five things I think the president and his advisers should do right away:

1. Re-open the fight to close Guantanamo - This has been a thorn in the side of everyone for too long. While it's understandable that there were other priorities in his first term, this should be part of the deal he makes with the budget or with the defense reauthorization act.
2. Take Medicare, Medicaid and Social Security off the table entirely - As talk about the "fiscal cliff" heats up and pressure is brought to bear, it would be good for the White House to remember that his voters who just delivered his second term trust him to save those programs, not alter them. That means no age extensions, no benefit cuts. Take them off the table altogether. Period.

   If any alteration is considered, it should only be one that raises the wage base to a level that funds Social Security benefit increases at current retirement ages.

3. Push back on Republicans' NDAA poison pills - Republicans will continue to insert poison language into the defense reauthorization acts which are anathema to progressives, such as codifying detention provisions, etc. One of the benefits of this election was to elect Senators who better than some of the ones who left, like Ben Nelson and Joe Lieberman, for example. So let's not allow the games with the indefinite detentions to continue, please?
4. Push Harry Reid for meaningful filibuster reform - I don't think I need to explain this further than to say the way to make the Senate meaningful is to stop these ridiculous filibuster efforts, at least to the extent that the vote becomes an up or down vote on the measure itself instead of a supermajority to even consider it.
5. Carry through on the promise to address voting issues - Enough is enough. Both sides had nothing but complaints about voting machines, lines, and early voting. Way too much time was wasted on the early voting process, and Secretaries of State like Ohio's Husted should be run out on a rail for their efforts to block our democratic process. Do an Ireland, toss the voting machines out and figure out a better way with a more honest and transparent process.

These things are not hard, and they would appeal to President Obama's progressive base as well as to the moderates who joined with them to make his re-election possible and build enthusiasm toward getting a better Congress elected in 2014 and another Democrat in 2016.

The two major fights I'd like to see happen in the next four years are immigration reform and a real climate change initiative. The first might be possible, if John Boehner is to be believed. The second might take a more solid majority in the Senate and taking back the House, unless some Republicans are ready to leave their comfy bubble and live in the real world. To that end, Governor Christie might be a helpful advocate.

What are your ideas? Fiscal cliff aside, what do you see as things to do in the short and long term?