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}

Lawmaker warns of ‘disagreeing with government’

This is the WND.com story on the conference call on our legislative efforts to stop NDAA. People from across the spectrum of political ideologies are uniting against the increase of tyranny of the federal government.

‘It’s kind of a dangerous time for people in America’

A Missouri state lawmaker says it’s a scary time in America, especially if you’re not fully on board with Washington’s socialist-leaning agenda.

“It’s kind of a dangerous time for people in America who might wind up disagreeing with the government,” Missouri Rep. Paul Curtman said during a conference telephone call regarding organized opposition for the National Defense Authorization Act.

 After serving in the Marines for 10 years, he said, he realizes that under the federal government’s definition of “potential terrorist,” he qualified by virtue of his status as a combat veteran and his conservative political views.

But it’s not just conservatives who are raising concerns about the legislation that includes provisions appearing to authorize the no-warrant detention of American citizens under certain conditions.

The law was signed by Barack Obama Dec. 31, 2011, and among its sections is 1021, “which purports to authorize the president of the United States to use the armed forces of the United States to detain American citizens who the president suspects are or have been substantial supports of al-Qaida, the Taliban, or associated forces, and to hold such citizens indefinitely,” according to an analysis of the federal law.

“In short, Section 1021 authorizes the president to dispose of American citizens suspected of supporting ‘terrorism’ according to the laws of war, as if the United States soil was a battlefield and her citizens enemy combatants, not entitled to the protections of the Bill of Rights, including the rights to trial by jury, representation by counsel, confrontation of witnesses, and due process of law administered by impartial judges,” the analysis said.

Virginia’s lawmakers recently endorsed a plan that would prevent application of such provisions within its borders.

Curtman’s comments came during a conference call involving the Tenth Amendment Center, Demand Progress, and the Bill of Rights Defense Committee.

Also participating were tea party Republicans, liberal Democrats and libertarians, according to a report from the Tenth Amendment Center’s Mike Maharrey.

“Detention provisions without due process written into sections 1021 and 1022 of the National Defense Authorization Act served as a shot across America’s bow, raising concern to an amazingly high level, bringing groups and individuals across the political spectrum together to battle what they view as an unconstitutional and dangerous federal power grab,” his report said.

David Moon is with Demand Progress, and said, “We are a one million member progressive civil liberties organization, which means that our perspective is very much grounded in the left of center portion of the political spectrum, but this fight for due process, civil liberties and to extend habeas corpus in America has really brought us in close coalition with members all across the spectrum, from the tea party to the liberty community to progressive Democrats to Republicans.”

Larry Bragman represents a district in the California town of Fairfax, where officials simply unanimously adopted a resolution condemning the NDAA provisions.

“I think anybody who takes the oath of office in this country as an elected official has got to do what they can do to reverse, oppose and resist this bill, and that’s what we’re doing in Fairfax,” he said, according to Maharrey’s report.

Curtman said he’ll sponsor a provision prohibiting Missouri from cooperating with federal officials, and Rhode Island State Rep. Dan Gordon agreed there are problems.

“I had to read those sections of the bill numerous times to ensure that I wasn’t mistaken in what I was seeing. And what it came down to was – I was correct. There is no definition of the term belligerent and who gets to make that determination. That is a problem. It’s standard procedure to put those terms and definitions in there. It was not done in this case,” he said.

He’s working on legislation for his state.

“When I took the oath of office, I swore, as I did when I served in the Marine Corps, that I would support the Constitutions, in this case of Rhode Island and the United States. And before one single constituent of mine is snatched up in the dead of night, without due process, under our laws, they’ll have to pry those documents from my cold dead hands,” he said.

Kriss Worthington, council member for Berkeley, Calif., said in Maharrey’s report, “We who believe in liberty and justice for all, we really do believe in liberty and justice, and these drastic restrictions on liberty are not only legally unconstitutional, but they are morally reprehensible and against the spirit and the nature of what the United States of America is supposed to be about.”

The Tenth Amendment Center said lawmakers in 11 states now are working on some form of limits on the federal government at this point. Ten local governments already have adopted resolutions.

Rhode Island Liberty Coalition director Blake Filippi represented the Tenth Amendment Center on the call. He spelled out the urgency involved.

“In the spirit of the heroic abolitionists in states like Wisconsin, Maine, and many others – today, we call upon states across the nation to pass the Liberty Preservation Act – to reject the so-called ‘indefinite detention’ powers of the NDAA,” he said.

“We hope to expand this effort … and blanket the entire country with a defense of liberty until ‘indefinite detention’ is thrown to the dustbin of history,” he said.

When Virginia was considering its legislation, Floyd Mori, chief of the Japanese American Citizens League, sent a letter.

“As many of you know, during World War II the Japanese American community was targeted as ‘suspected enemy aliens’ and by authority of Presidential Executive Order 9066, over 110,000 people were rounded up and put into concentration camps at 10 desolate locations under the notion that they could be suspect,” he told the lawmakers in Virginia.

“This period of indefinite detention lasted until the war ended, and there was no due process as guaranteed by the Constitution. A congressional commission later, through a number of public hearings, found that this was an unjustified act of the government due to war hysteria, racism, and poor government leadership at the time. The government was ordered by an act of Congress to apologize and provide redress in order to learn a lesson that this should never again happen. If there were more who stood up to this injustice, much heartache and economic loss could have been avoided and this apology would not have been needed,” he said.

“Today we face a similar situation. The so-called ‘War on Terror’ has led to the same kind of hysteria and racist actions by government. I can also say that we have lacked the political leadership to identify that this kind of forced indefinite detention is a repeat of what happened during WWII,” he said.

“The state of Virginia has the opportunity to stand up to an unjust application of congressional authority. The American people need somebody to stand up against this injustice. HB 1160 is a tool that does just that; it stands up for the American people by respecting the basic principles of the Constitution.”

Outside opinions on exactly what the law allows vary widely.

Commentator Chuck Baldwin, who himself has been the target of smears by the Department of Homeland Security-related apparatus, explained the law, “for all intents and purposes, completely nullifies a good portion of the Bill of Rights, turns the United States into a war zone, and places U.S. citizens under military rule.”

“When signing the NDAA into law, Obama issued a signing statement that in essence said, ‘I have the power to detain Americans … but I won’t,” Baldwin wrote.

Baldwin was vilified by an anti-terror campaign in Missouri several years ago when authorities there described suspicious characters as those who might have supported him or other third-party candidates during a presidential election.

A state agency, and later the Department of Homeland Security, offered warnings that returning veterans, those who oppose abortion and others who advocate conservative issues could pose a danger to the nation.

Others have pooh-poohed the concerns about the apprehension of Americans. Wayne Bowen, a professor at Southeast Missouri State University not far from where state officials had issued that warning about Baldwin, said, “The NDAA not only does not empower the U.S. military to detain American citizens indefinitely, it specifically prohibits this.

“The NDAA confirms as U.S. law the practice that foreign terrorists … will be held indefinitely by the U.S. military. Indeed, this is a far more generous policy than allowed under international law,” he wrote.

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NDAA: “We must resist. We must oppose. We must reverse”

Posted by Mike Maharrey

You won’t often find organizations as dissimilar as the Tenth Amendment Center, Demand Progress and The Bill of Rights Defense Committee, along with Tea Party Republicans, liberal Democrats and libertarians, playing nicely together on the same playground.

Even more unusual – finding them all pulling together on the same team.

But detention provisions without due process written into sections 1021 and 1022 of the National Defense Authorization Act served as a shot across America’s bow, raising concern to an amazingly high level, bringing groups and individuals across the political spectrum together to battle what they view as an unconstitutional and dangerous federal power grab.

“We are a 1 million member progressive civil liberties organization, which means that our perspective is very much grounded in the left of center portion of the political spectrum, but this fight for due process, civil liberties and to extend habeas corpus in America has really brought us in close coalition with members all across the spectrum, from the Tea Party to the liberty community to progressive Democrats to Republicans,” Demand Progress program director David Moon said.

On Tuesday, TAC, BORDC and Demand Progress partnered to host a media conference call featuring state and local legislators from both sides of the political aisle. These lawmakers come from vastly different backgrounds and political perspective, but they have all joined the fight at the state and local level, seeking ways to block federal detention under the NDAA.

Larry Bragman

The Fairfax, Calif. town council recently passed a resolution condemning NDAA detention. Larry Bragman (G) represents a district in the small San Francisco Bay area community of 7,500 people. He says the council passed the resolution unanimously.  And he seemed to channel James Madison opposing the Alien and Sedition Acts back in 1798 when he demanded action.

“I think anybody who takes the oath of office in this country as an elected official has got to do what they can do to reverse, oppose and resist this bill, and that’s what we’re doing in Fairfax,” he said.

Missouri Rep. Paul Curtman (R) shared his experience coming home after serving in the Marines for 10 years, realizing that under the definition of “potential terrorist” provided by Missouri state law enforcement officials and the U.S. Department of Homeland Security, he qualified simply by virtue of his status as a combat vet and his right-leaning political views. He said the vague language in the NDAA could conceivably spell trouble for dissenters of all stripes in the United States.

Paul Curtman

“The bill doesn’t say who gets to make these decisions, there’s a lot of definitions that are lacking, meanwhile the definition of terrorist continues to get vaguer, and vaguer, and vaguer. It’s kind of a dangerous time for people in America who might wind up disagreeing with the government,” he said.

In response, Curtman plans to sponsor the House version of SB819, which would prohibit the state of Missouri from cooperating with federal officials attempting to enforce NDAA sections 1021 or 1022.

Fellow Marine and Rhode Island State Rep. Dan Gordon (R) expressed similar uneasiness about language in the NDAA.

“When I first heard about this, it gave me great pause. I had to read those sections of the bill numerous times to ensure that I wasn’t mistaken in what I was seeing. And what it came down to was – I was correct,” he said. “There is no definition of the term belligerent and who gets to make that determination. That is a problem. It’s standard procedure to put those terms and definitions in there. It was not done in this case.”

In January, Gordon began drafting H7916, and he introduced the bill in March with 43 cosponsors. A pretty amazing feat considering that the Rhode Island House has just 10 Republicans, with the “opposition party” holding 65 seats.

Dan Gordon

Gordon said the bipartisan support really makes sense when taking an objective look at the danger posed by allowing the federal government to wield such undefined and expansive powers given in the NDAA.

“This is an issue that is of concern and should be terrifying to each and every single American, regardless of ideological, political stripe,” he said. “Once one of us loses our voice to speak, we’re all in jeopardy.”

Gordon said it ultimately came down to fidelity to his oath of office.

“When I took the oath of office, I swore, as I did when I served in the Marine Corps, that I would support the Constitutions, in this case of Rhode Island and the United States. And before one single constituent of mine is snatched up in the dead of night, without due process, under our laws, they’ll have to pry those documents from my cold dead hands.”

Bragman said the city of Fairfax prides itself on its self-sufficiency and local control. He pointed out that the NDAA continues a trend of federalizing local law enforcement, and he expressed concern about the potential threat to civil liberties and community autonomy. In fact, he says it’s already happening.

Bragman illustrated the danger, pointing out that regional law enforcement, organized by the U.S. Department of Homeland Security, cracked down on the Occupy movement in Oakland. He also noted the uptick in federal raids on medical marijuana clinics operating in the Bay Area for years.

“That’s very disturbing to us, because Fairfax, for example, just had to pass a sales tax to support our local services, and certainly for the federal government to come in and now direct local law enforcement towards these sorts of non-specific goals under the National Defense Authorization Act is truly, truly chilling,” he said.

Bragman also noted that language in the NDAA doubles down on some of the worst civil liberty violations of the Bush years.

“It’s brought a lot of the most unsavory aspects of the Bush administration’s shredding of the Constitution out of the shadows and into enshrinement of law, because not only does it allow the designation of certain types of activity as being exempt from the Constitution, it also enshrines extraordinary rendition into law,” he said. “We must resist. We must oppose. We must reverse.”

Kriss Worthington

Berkeley, Calif.  city councilor Kriss Worthington said he feels like the detention provisions in the NDAA tarnish the image of the U.S.

“We who believe in liberty and justice for all, we really do believe in liberty and justice, and these drastic restrictions on liberty are not only legally unconstitutional, but they are morally reprehensible and against the spirit and the nature of what the United States of America is supposed to be about.”

He pointed out that Americans typically pride themselves on upholding human rights.

“How will people take us seriously if we have repressive legislation on the books that allows some of those same kinds of unreasonable restrictions on our own people’s liberty?”

State and local opposition to NDAA detention without due process continues to spread across the United States. Including Rhode Island and Missouri, lawmakers in 11 states are considering legislation to condemn or block sections 1021 and 1022. And 10 local governments have already passed anti-NDAA resolutions.

Blake Filippi

Rhode Island Liberty Coalition director Blake Filippi represented the Tenth Amendment Center on the call. He spelled out the urgency involved.

In 1850, when Congress passed what was known as the “Fugitive Slave Act,” the federal law compelled people of all states to assist federal agents with the apprehension of suspected runaway slaves and brought all trials involving alleged fugitive slaves under federal jurisdiction. It included large fines for anyone who aided a slave in their escape, even by simply giving them food or shelter. The act also suspended habeas corpus and the right to a trial by jury for suspected slaves, and made their testimony non-admissible in court.

This was an atrocity.

But the people of the states didn’t just stand there and take it.  In the ensuing years, states all over the North began passing what were known as “Personal Liberty Laws” – rejecting such claims of federal power and reasserting the state’s role in protecting the rights of people.  Massachusetts went so far as to consider such federal acts to be the crime of kidnapping – and after passing their Personal Liberty Law, not one single escaped slave was returned to the South under the Fugitive Slave Act.

While that horrible part of American history is gladly long gone, due process is still under attack by the Federal Government today.   And in the spirit of the heroic abolitionists in states like Wisconsin, Maine, and many others – today, we call upon states across the nation to pass the Liberty Preservation Act – to reject the so-called “indefinite detention” powers of the NDAA.

In partnership with the Bill of Rights Defense Committee and Demand Progress, we hope to expand this effort beyond the 10 local communities which have already passed such legislation – and the 11 states moving to consider it already – and blanket the entire country with a defense of liberty until “indefinite detention” is thrown to the dustbin of history.

To listen to the entire press conference, click HERE.

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.

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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

 

Update 3/14/12

Having conversations today with members of leadership and major ‘players’ in the Rhode Island House, I received positive comments about the possibility of the anti-NDAA resolution moving out of the House Committee on the Judiciary. I will let you know when the hearing is coming up!

Libertarian Party applauds Virginia legislators for passing bill to stop NDAA; calls on policymakers to follow suit

 By Newsroom America Feeds at 8 Mar 19:40

Libertarian Party Chair Mark Hinkle released the following statement today: “The Libertarian Party applauds the efforts of Delegate Bob Marshall and the Virginia General Assembly for passing HB 1160 which prevents Virginia’s state and local government agencies from cooperating with the federal government in the indefinite detention of Virginians under the National Defense Authorization Act of 2012 (“NDAA”). “The draconian National Defense Authorization Act is an offensive against American citizens. It authorizes the President and the military to arrest and detain American citizens indefinitely, without charges, without the chance to confront their accusers, without legal counsel, and without a trial.” “We call for Governor McDonnell to immediately sign this bill into law.” “We further call on members of every state legislature and every governor to follow suit and pass similar legislation.” “We further call on every 2012 presidential candidate, every congressional candidate, and every U.S. Senate candidate to assert their unwavering opposition to NDAA and to vow to repeal it if elected.” Delegate Bob Marshall’s Press Release

GET INVOLVED: Paid for by the Libertarian National Committee 2600 Virginia Ave, N.W. Suite 200, Washington D.C. 20037 Content not authorized by any candidate or candidate committee.

Update! Rhode Island Anti-NDAA Resolution Gains Majority!

We Have a Majority!

Good news!
The resolution in opposition to the onerous language contained in the National Defense Authorization Act of 2012 now has a MAJORITY of the Rhode Island House in co-sponsors! Today, the total is brought to 43. Only 38 yea votes are required to pass a bill. Also, Senator Moura reports that the Senate now has a total of five sponsors on the companion bill, and is expected to obtain more.

With 43 sponsors, one would think it would sail through committee. But not so fast. At times, there are hijinks know as ‘held for further study’ which stalls the bill. This is where you come in. Click this link and follow the instructions. It’s ONLY TWO emails to save you, your friends, and your family, from kidnapping by the military. Click here and follow the instructions: http://pastebin.com/6vXFfyFG

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.

Co-Sponsorship On Rhode Island Resolution Opposed to NDAA, Rockets!

Good News! Today we upped the co-sponsorship of my House Resolution to Preserve Habeas Corpus and Civil Liberties of the Citizens of Rhode Island! Prior to today, we had 15, including myself. Today, after working the floor and explaining to my colleagues the necessity of quashing the ever-encroaching tyranny of the Federal government, I obtained another 22 signatures! That brings the total to 36 co-sponsors. Two more, (which I SHALL obtain tomorrow) and that brings us to over half of the members of the Rhode Island House of Representatives!

NDAA Co-Sponsors

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.