NDAA 2013 Passes out of Committee; Indefinite Detention Provisions Remain Intact

THE NEW AMERICAN

Friday, 11 May 2012 06:00

Written by  Joe Wolverton, III

As opposition to the National Defense Authorization Act of 2012 continues to grow, along comes the 2013 version, which promises to perpetuate the attack on liberty begun by its predecessor.

In the pre-dawn hours on Thursday, by a vote of 56-5, the House Armed Services Committee passed a slate of changes to the NDAA for the next fiscal year. Committee Chairman Howard P. “Buck” McKeon (R-Calif.) released a statement announcing the goals of the bill’s latest mark-up:

I am proud of the bi-partisan way the Committee has worked together to build this bill. It rebuilds a force strained by ten years of war while restoring both fiscal and strategic sanity to the defense budget. It keeps faith with our troops and their families while keeping America ready to face the threats of the future.

In his statement, Representative McKeon declares that “every American must have his day in court.” Further, he “reaffirms the fundamental right to Habeas Corpus of any person detained in the United States pursuant to the 2001 Authorization for the Use of Military Force.”

Section 1033 of the mark-up version passed by the committee is offered as the codification of that protection. Here is the current text of that updated provision:

This section would state that nothing in the Authorization for Use of Military Force (Public Law 107-40) 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 in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force (Public Law 107-40).

The double-speak contained in that paragraph is impressive even for a Capitol Hill lawyer.

Read it very closely: The new bill does nothing to prevent the indefinite detention of Americans under the 2013 NDAA; furthermore, it only reiterates that habeas corpus is a right in courts established under Article III of the Constitution. That such a right exists in the courts of the United States has never been the issue. The concern of millions of Americans from every band in the political spectrum is that Americans detained as “belligerents” under the terms of the NDAA will not be tried in Article III courts, but will be subject to military tribunals such as the one currently considering the case of the so-called “Gitmo Five.” There is not a single syllable of the 2013 NDAA that passed out of the House Armed Service Committee on Thursday that will guarantee Americans will be tried in a constitutional court and not a military commission.

Curiously, furthermore, McKeon’s mark-up ties the fundamental right of habeas corpus not to the Constitution (or the nearly 900 years of Anglo-American law), but to the Authorization for the Use of Military Force where the protection of that right is severely diminished. Such sleight of hand should not go unnoticed, particularly when it is performed by one who flies under the “Republican” banner.

On the subject of partisanship, it is almost axiomatic that Republicans and Democrats do not agree and that “reaching across the aisle” is an unattainable goal. While such conflict is not only anticipated but is encouraged in the government established by the Constitution, the frighteningly indefinite detention provisions of the NDAA seem to be an area where bipartisanship is becoming more common.

Prior to the Armed Services Committee’s hammering out of the new NDAA, Representative Adam Smith (D-Wash.), the ranking member of that committee, announced that he will propose an amendment to the 2013 NDAA that would explicitly forbid the indefinite detention within the United States and repeal the provision of law from this year’s version that permits the transfer of some suspected of terrorism into the custody of the military.

Currently, the Smith Amendment (officially styled the “Due Process and Military Detention Amendments Act”) has 60 sponsors from both major political parties. Given the noble aim of the Smith proposal, all constitutionalists should be de facto co-sponsors of the bill, as well.

The purpose of the measure, as set forth in the text, is:

To amend the National Defense Authorization Act for Fiscal Year 2012 to provide for the trial of covered persons detained in the United States pursuant to the Authorization for Use of Military Force and to repeal the requirement for military custody.

Smith’s bill accomplishes this goal in two steps: First, it repeals the infamous Section 1022 of the 2012 NDAA. Section 1022 is the provision that empowers the President to order the military to take custody of certain “covered persons” (those branded by the President as threats to national security); next, the Due Process and Military Detention Amendments Act would revise Section 1021 of the existing act (the section authorizing the indefinite detention of American citizens classified as “belligerents”) by amending the current language to read:

Disposition of Covered Persons Detained in the United States — In the case of a covered person who is detained in the United States pursuant to the Authorization for Use of Military Force, disposition under the law of war shall only mean the transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States.

While the broad strokes of the NDAA are by now likely familiar to readers, a brief overview is in order.

Most of what is contained in the over-500-page 2012 version of the NDAA is inimical to liberty. For example, under the provisions of the aforementioned Section 1021, the President is afforded the absolute power to arrest and detain citizens of the United States without their being informed of any criminal charges, without a trial on the merits of those charges, and without a scintilla of the due process safeguards protected by the Constitution of the United States.

In order to execute this immense power, the NDAA unlawfully grants the President the absolute and unquestionable authority to deploy the armed forces of the United States to apprehend and to indefinitely detain those suspected of threatening the security of the “homeland.” In the language of this legislation, these people are called “covered persons.”

Regardless of promises to the contrary, the language of the NDAA places every citizen of the United States within the universe of potential “covered persons.” Any American could one day find himself or herself branded a “belligerent” and thus subject to the complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison.

The NDAA for Fiscal Year 2013 will now soon come before the full body of the House of Representatives for a vote. No doubt the deliberations will feature speeches decrying the revocation of habeas corpus and the legalization of the indefinite detention of Americans in military prisons based on nothing more than presidential suspicion.

So as to prevent these denouncements from being nothing more than sound and fury signifying nothing, Americans must be actively engaged in the fight to prevent such precedents from being set. We must remember that these deviations from the strait and narrow constitutional path have placed our Republic on a trajectory toward tyranny.

^{Photo: Congressman Howard “Buck” McKeon (in dark blue striped shirt) touring the Guantanamo Bay detention facility}

Rhode Island Anti-NDAA Bill Has Been Scheduled for Committee Hearing

I received notification today that our bill in opposition to sections 1021 and 1022 of the National Defense Authorization Act of 2012, has received a hearing date of 3/21/12 before the House Judiciary Committee. For anyone wanting to come and testify on behalf of the bill, you may do so by coming to the Rhode Island State House, room 313 at about 4:30. Ask for the sign-in sheet for bill H7916 and fill in the appropriate boxes. You also may sign in as a supporter, but not wishing to testify.

The ACLU and Demand Progress to this date have still not indicated support, despite being asked. That leaves it up to us, People. If you possibly can, please come to the hearing in support of NOT allowing the federal government to kidnap us, our families, and friends.

I will also be posting a new link with an email template you can send if you can’t make it in person.

Judicial Committee Calendar: http://status.rilin.state.ri.us/documents/agenda-8450.aspx

Bill Text: http://www.rilin.state.ri.us/BillText/BillText12/HouseText12/H7916.pdf

 

The NDAA: a clear and present danger to American liberty

The US is sleepwalking into becoming a police state, where, like a pre-Magna Carta monarch, the president can lock up anyone

• 
• • Naomi Wolf
  • guardian.co.uk, Wednesday 29 February 2012 13.52 EST

NDAA critics say that it enables ordinary US citizens to be treated like ‘enemy combatants’ in Guantánamo. Photograph: Paul J Richards/AFP/Getty Images

Yes, the worst things you may have heard about the National Defense Authorization Act, which has formally ended 254 years of democracy in the United States of America, and driven a stake through the heart of the bill of rights, are all really true. The act passed with large margins in both the House and the Senate on the last day of last year – even as tens of thousands of Americans were frantically begging their representatives to secure Americans’ habeas corpus rights in the final version.

It does indeed – contrary to the many flatout-false form letters I have seen that both senators and representatives sent to their constituents, misleading them about the fact that the NDAA destroys their due process rights. Under the act, anyone can be described as a ‘belligerent”. As the New American website puts it,

“[S]ubsequent clauses (Section 1022, for example) unlawfully give the president the absolute and unquestionable authority to deploy the armed forces of the United States to apprehend and to indefinitely detain those suspected of threatening the security of the ‘homeland’. In the language of this legislation, these people are called ‘covered persons’.

“The universe of potential ‘covered persons’ includes every citizen of the United States of America. Any American could one day find himself or herself branded a ‘belligerent’ and thus subject to the complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison.”

And with a new bill now being introduced to make it a crime to protest in a way that disrupts any government process – or to get close to anyone with secret service protection – the push to legally lock down the United Police States is in full force.

Overstated? Let’s be clear: the NDAA grants the president the power to kidnap any American anywhere in the United States and hold him or her in prison forever without trial. The president’s own signing statement, incredibly, confirmed that he had that power. As I have been warning since 2006: there is not a country on the planet that you can name that has ever set in place a system of torture, and of detention without trial, for an “other”, supposedly external threat that did not end up using it pretty quickly on its own citizens.

And Guantánamo has indeed come home: Guantánamo is in our front yards now and our workplaces; it did not even take much more than half a decade. On 1 March, the NDAA will go into effect – if a judicial hearing scheduled for this week does not block it – and no one in America, no US citizen, will be safe from being detained indefinitely – in effect, “disappeared.”.

As former Reagan official, now Ron Paul supporter, Bruce Fein points out, on 1 March, we won’t just lose the bill of rights; we will lose due process altogether. We will be back at the place where we were, in terms of legal tradition, before the signing of the Magna Carta – when kings could throw people in prison at will, to rot there forever. If we had cared more about what was being done to brown people with Muslim names on a Cuban coastline, and raised our voices louder against their having been held without charge for years, or against their being tried in kangaroo courts called military tribunals, we might now be safer now from a new law mandating for us also the threat of abduction and fear of perpetual incarceration.

We didn’t care, or we didn’t care enough – and here we are. We acclimated, we got distracted, the Oscars were coming up … but the fake “battlefield” was brought home to us, now real enough. Though it is not “we” versus Muslims in this conflict; it is our very own government versus “us”. As one of my Facebook community members remarked bitterly, of our House representatives, our Senate leaders and our president, “They hate our freedoms.”

The NDAA is, in the words of Shahid Buttar of the Bill of Rights Defense Committee, “the worst threat to civil liberties since COINTELPRO. It gives the government the power to presume guilt rather than innocence, and indefinitely imprison anyone accused of a ‘belligerent act’ or terror-related offense without trial.” He points out that it gives future presidents the power to arrest their political critics. That may even be understating things: it is actually, in my view, the worst threat to civil liberty in the US since habeas corpus was last suspended, during the American civil war.

On a conference call for media last Friday, hosted by the cross-partisan BORDC (which now includes the 40,000 members of the American Freedom Campaign, which we had co-founded as a response to the warning in 2007 that America was facing a “fascist shift”) and the right-leaning Tenth Amendment Foundation, we were all speaking the same language of fear for our freedom, even though our perspectives spanned the political spectrum. As the Tenth Amendment Foundation put it, we are a family with diverse views – and families know when it is time to put aside their differences. If there were ever a time to do so, it is now.
This grassroots effort is pushing hard in many places. Protests that included libertarians, progressives, Tea Party members and Occupy participants have been held nationwide in recent weeks. State legislators in Virginia, Tennessee, and Washington have also introduced bills to prevent state agencies from aiding in any detention operations that might be authorized by the NDAA. In other words, they are educating sheriffs and police to refuse to comply with the NDAA’s orders. This presents an Orwellian or 1776-type scenario, depending upon your point of view, in which the federal government, or even the president, might issue orders to detain US citizens – which local sheriffs and police would be legally bound to resist.

What will happen next? I wrote recently that the US is experiencing something like a civil war, with only one side at this point – the corporatist side – aggressing. This grassroots, local-leader movement represents a defensive strategy in what is being now tacitly recognized as unprovoked aggression against an entire nation, and an entire people. (Here I should say, mindful of the warning issued to me by NYPD, which arrested me, to avoid saying anything that could be construed as “incitement to riot” and that I believe in nonviolent resistance.)

The local resistance to the police state goes further: midwestern cities, such as Chicago and Minneapolis, are considering “torture-free city” resolutions that would prohibit the torture which civil libertarians see as likely under a military detention regime expanded by the NDAA. (Bradley Manning’s initial treatment in solitary confinement, for instance, met some Red Cross definitions of torture.)

But I am far more scared than hopeful, because nothing about the NDAA’s legislative passage worked as democracy is supposed to work. Senator Dianne Feinstein, for instance, in spite of her proposed (defeated) amendment that could have defended due process more completely, has nonetheless not fought to repeal the law – even though her constituents in California would, no doubt, overwhelmingly support her in doing so. Huge majorities passed this bill into law – despite the fact that Americans across the spectrum were appalled and besieging their legislators. And this president nailed it to the table – even though his own constituency is up in arms about it.

History shows that at this point, there isn’t much time to mount a defense: once the first few arrests take place, people go quiet. There is only one solution: organize votes loudly and publicly to defeat every single signer of this bill in November’s general election. Then, once we have our Republic back and the rule of law, we can deal with the actual treason that this law represents.

Indefinite detention and torture: US already enforcing NDAA

Cuba, Guantanamo Bay: A “non-compliant” detainee is escorted by guards after showering inside the U.S. military prison for “enemy combatants” on October 27, 2009 in Guantanamo Bay, Cuba. (AFP Photo / John Moore)

Not even a month after President Barack Obama signed his name to the National Defense Authorization Act for Fiscal Year 2012, the US government is already using the legislation to justify its ongoing detainment of a prisoner at Guantanamo Bay.

Musa’ab al-Madhwani had barely entered adulthood when he first arrived at the military prison at Guantanamo Bay, Cuba in 2002. But in the months between his capture in Pakistan and transfer to Gitmo, the Yemeni national experienced more than most would see in a lifetime. Before he turned 23, he says he was beaten and kicked, threatened with death and suspended by his hands in an underground torture chamber.

Now for the prisoner, about to celebrate the 10-year-anniversary of his arrival at Gimo, the rest of that lifetime looks to be spent behind bars thanks to the NDAA.

In a statement filed by his attorneys, they describe Musa’ab al-Madhwani as an “easy-going teenager” before he was recruited in a coffee shop by strangers who promised him “a month-long adventure” in 2001. Al-Madhwani agreed, but regretted his decision after being forced into a military training camp in Afghanistan. After al-Qaeda operatives destroyed the Twin Towers, the Afghan facility where he was trained was shut down. He attempted to return to his home in Yemen, but ended up unable to make the trip. In 2002, al-Madhwani found himself living from house-to-house while trying to figure out a way to make it back to Yemen. Eventually authorities closed in a group of insurgents, and al-Madhwani happened to be on the scene.

“The group I was arrested with were staying in two apartments,” he would tell an Administrative Review Board. “One person from each apartment refused to surrender and fought the Pakistani forces sent to arrest us. I was in the group that chose to surrender,” he said. According to al-Madhwani, the authorities were “thankful for our cooperation and surrendering without fighting.” That cooperation would only enter al-Madhwani into a decade of darkness.

Before ending up at Gitmo, al-Madhwani was brutally tortured in an underground facility in Afghanistan, what he called a “Dark Prison.” He told US officials in 2005 that he believed “It was impossible that I could get out of there alive” and was coerced into announcing his participation with terrorist forces only because he was beaten into submission.

The US court system would go later acknowledge this treatment and took al-Madhwani’s word that the confession only came after it was beaten out of him. In January 2010, US District Judge Thomas Hogan called 23 of the 26 documents that government presented as evidence against the man “tainted” because “coercive interrogation techniques” were used to obtain them. Judge Hogan would also rule, however, that the remaining three pieces of evidence were not. Even if months of torture in unimaginable conditions would cause al-Madhwani to admit guilt, the judge ruled that confessions offered up years later, which he viewed as “fundamentally different,” were enough to keep him detained .

Judge Hogan would also go on the record to say that al-Madhwani was a “model prisoner” at Guantanamo and explained in court documents, “There is nothing in the record now that he poses any greater threat than those detainees who have already been released.” Other excerpts described the prisoner as “a lot less threatening” than former Gitmo detainees already released, and “at best … the lowest level al-Qaeda member” who should be returned to Yemen. The District Court wrote then that the “basis for continuing to hold him is questionable.”

Now nearly a decade since arriving at Gitmo, al-Madhwani stands to stay there for a while longer, to say the least. His attorneys filed a petition last year asking that he finally be brought to trial for his alleged crimes. The government did not offer up a response until late this month, only days after President Barack Obama signed his name to the NDAA.

The National Defense Authorization Act was met with intense scrutiny from critics when it escaped Congress and opposition even forced the president into offering a signing statement before he inked the legislation addressing the issues. Under the NDAA, the president is granted the authority to indefinitely detain and torture anyone, including American citizens, without bringing them to trial. Although officials say it only affirms detention provisions from earlier legislation, the signing started a slippery slope which could indeed eventually see to it that anyone suspected of a “belligerent act” be put behind bars without a trial.

“The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” Obama said while signing the NDAA on December 31, 2011. Despite these concerns, however, the NDAA was acted into law. Now less than a month later, those provisions that Obama said were of concern are now already being used to keep Musa’ab al-Madhwani further behind bars.

Attorneys for al-Madhwani filed a petition last year to ask the court to re-investigate the case and perhaps finally bring the detainee before a jury for his alleged crimes. In their response, the United States Supreme Court writes that the ongoing detention of this “model prisoner” is perfectly by-the-books, as the National Defense Authorization Act allows it.

In response to the cert petition filed last year by al-Madhwani’s attorneys, the Supreme Court answers by quoting a provision of the NDAA. “In Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), Pub. L. No. 112-81, 125 Stat. 1561 (2011), Congress ‘affirm[ed]’ that the authority granted by the AUMF includes the authority to detain, ‘under the law of war,’ any ‘person who was 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.”

Further in their response, the Supreme Court quotes the Act again, calling up the authority granted to the president to detain any “person who was 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.”

When he added a signing statement to the NDAA, President Obama acknowledged the harsh realities of the legislation but said he would not enforce it on American citizens. That does not mean, however, that other administrations have to abide by that interpretation. Pulitzer Prize-winning journalist Chris Hedges filed a lawsuit against the president earlier this month challenging the legality of the NDAA. In an explanation of the suit, Hedges wrote, “I have had dinner more times than I can count with people whom this country brands as terrorists,” adding, “But that does not make me one.” Regardless, any affiliation with a group branded as such could lead authorities to leap to such conclusions.

Another legislation, yet to be approved, would allow the US government to strike citizenship away without a trial, essentially opening up the NDAA for everyone, with or without Obama’s order. That bill, the Enemy Expatriation Act, would strip nationality from anyone concerned a threat.

As seen with al-Madhwani, however, even American authorities don’t consider him a threat. He was barely a child when he accidentally found himself on the wrong side of a war with America and for it he was detained and tortured in at least two different facilities by Pakistanis and Americans alike before arriving at Guantanamo. Now a decade later, the NDAA will see to it that the rest of his life will be spent behind bars in the US military prison.