Jim Turpin : Is the Imperial Presidency the 'New Normal'?

The Imperial Obama? Image from The Express Tribune.

The 'new normal'?
The Imperial Presidency

"Same as it ever was..."
-- Talking Heads ("Once in a Lifetime")

By Jim Turpin / The Rag Blog / February 27, 2013

First of a two-part series.

Many presidents throughout our history, from revered to despised, have ignored the Constitution and taken on the mantle of imperial power. From Lincoln to FDR to Nixon, the examples are easily found.

In the ancient Roman world, the term imperium refers to the amount of power given to individuals of authority such as dictators or consuls and was frequently applied to generals with military power. The term “imperial” usually is linked to an empire or the concept of imperialism.

But how have we gotten to where we are today, where the president of the United States can detain or assassinate an American citizen without due process? Where American citizens are constantly monitored and personal information is subject to review? Where whistleblowers are now detained and prosecuted for exposing war crimes and corruption?

The development of the executive branch’s imperial power has its gnarled roots deep in American history. Frequently presidents have used it as an excuse during times of war, but this has not always been the case.

Abraham Lincoln famously suspended habeas corpus during the Civil War on April 27, 1861, in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union. Habeas corpus (literally in Latin “you shall have the body [in court]”) is specifically detailed in the U.S. Constitution in Article I, Section 9: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

A writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person's imprisonment or detention is lawful.

Franklin D. Roosevelt issued Executive Order 9066 over 70 years ago on February 19, 1942, which led to the forced internment of more than 120,000 Japanese-Americans that lived on the west coast.

The U.S., citing national security interests, demanded that Japanese-Americans be interned without due process or, it would eventually turn out, any factual basis. Whole communities were rounded up and sent to camps, sometimes just clapboard shelters or converted horse stables, in arid deserts and barren fields in Utah, Idaho, Wyoming, Arkansas.

Nixon's paranoid presidency..

Richard M. Nixon’s deep paranoia over the civil rights and peace movement led to the continued use of the secret FBI program Counterintelligence Program (COINTELPRO), as a means to monitor, sabotage, and neutralize legitimate dissent across the country. COINTELPRO infiltrated the Southern Christian Leadership Conference (SCLC), the NAACP, the Students for a Democratic Society (SDS), the National Lawyer Guild, and many other groups and organizations.

But what drives today’s constitutional overreach by the Executive Office? Recent history points to a number of factors, including:

• Codification of the Executive’s Imperial Power
• America’s One Party System

Codification of the Executive Imperial Power

Within days of the 9/11 attacks, the U.S. Congress responded by ramroding a number of open-ended laws that gave the Executive branch a blank check to wage war world-wide and indefinitely detain civilians at home and abroad.

Joanne Mariner of Justia.com neatly fits together the convoluted pieces of the Patriot Act, the Authorization of the Use of Military Force (AUMF), and the National Defense Authorization Act (NDAA) which, though initiated by George W. Bush, is now fully promulgated by Barack Obama:

During the Bush years, despite massive public and press attention to the administration’s detention policies, Congress remained largely out of the picture. While the USA PATRIOT Act contained some provisions on detention, they were never put to use; the Bush administration preferred to create a detention system that was, it assumed, largely free of legal constraints and judicial oversight.

The military prison at Guantanamo and the CIA’s secret prison system were therefore created by executive fiat, without congressional input or restriction. When cases challenging Guantanamo and the military detention of U.S. citizens on U.S. soil got to court, however, the administration claimed that the Authorization for Use of Military Force (AUMF), a joint resolution passed by Congress in September 2001, gave congressional approval for those detentions.

The AUMF, which authorizes the president to use “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11 attacks, or who harbored such persons or groups, is silent on the issue of detention. A plurality of the U.S. Supreme Court agreed with the administration, nonetheless, that the power to detain is necessarily implied by the power to use military force.

The NDAA, which is renewed every year, also contains sections, according to Mariner, that are deeply troubling to human rights activists:

What is now known as Subtitle D of the NDAA -- the section on detention -- made its first appearance in March of this year (2011). Called the Detainee Security Act in the House, and the Military Detainee Procedures Improvement Act in the Senate, the bills, introduced by Representative Buck McKeon and Senator John McCain, respectively, were meant to shift counterterrorism responsibilities from law enforcement to the military.

The clear goal of the two bills was to require that suspected terrorists either be tried before military commissions or be held in indefinite detention without charge... every provision in subtitle D is objectionable from the standpoint of human rights and civil liberties. Among the controversial provisions are sections 1026, 1027 and 1028 of the bill, which restrict detainee transfers and releases from Guantanamo. But while human rights organizations are worried about these limitations, their gravest concerns pertain to sections 1021 and 1022.

Glenn Greenwald, while still at Salon, addresses Sections 1021 and 1022:

There are two separate indefinite military detention provisions in this bill. The first, Section 1021, authorizes indefinite detention for the broad definition of “covered persons” discussed above in the prior point. And that section does provide that “Nothing in this section shall be construed to 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.” So that section contains a disclaimer regarding an intention to expand detention powers for U.S. citizens, but does so only for the powers vested by that specific section.

More important, the exclusion appears to extend only to U.S. citizens “captured or arrested in the United States” -- meaning that the powers of indefinite detention vested by that section apply to U.S. citizens captured anywhere abroad (there is some grammatical vagueness on this point, but at the very least, there is a viable argument that the detention power in this section applies to U.S. citizens captured abroad).

But the next section, Section 1022, is a different story. That section specifically deals with a smaller category of people than the broad group covered by 1021: namely, anyone whom the President determines is “a member of, or part of, al-Qaeda or an associated force” and “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”

For those persons, section (a) not only authorizes, but requires (absent a Presidential waiver), that they be held “in military custody pending disposition under the law of war.” The section title is “Military Custody for Foreign Al Qaeda Terrorists,” but the definition of who it covers does not exclude U.S. citizens or include any requirement of foreignness.

That section -- 1022 -- does not contain the broad disclaimer regarding U.S. citizens that 1021 contains. Instead, it simply says that the requirement of military detention does not apply to U.S. citizens, but it does not exclude U.S. citizens from the authority, the option, to hold them in military custody.

The annual renewal of the NDAA by the Congress of the United States is a sad and deeply troubling testimony to how we empower an Executive branch that is ironically supposed to have their overreach limited by the very branch voting for this law.


America’s One Party System

John Kerry, Winter Soldier.

During the presidential election last fall, if I closed my eyes and listened to speeches on national security, there was basically no policy difference. Both parties called us the “Greatest nation on Earth” and tried to outdo the other with patriotic and nationalistic proclamations and slogans.

As pointed out by Mother Jones during coverage of the election for both party’s conventions, John Kerry (who coincidentally became our new Secretary of State in 2013) spouted, “Ask Osama bin Laden if he is better off now than he was four years ago."

The story went on:

...Democrats have adopted the kind of language that might have been derided as "cowboy rhetoric" four years ago. And Kerry wasn't the first or last speaker to invoke Bin Laden in Charlotte last week [in 2012]. Asking for four more years of Obama, Vice President Joe Biden intoned that "Osama bin Laden is dead and General Motors is alive!" Eight years ago, Democrats trying to act tough on national security sounded like kids playing pretend; at times, this year's convention sounded like a Roman triumph.

Let’s remember, this is the same Lieutenant John Kerry who as a member of Vietnam Veteran’s Against the War (VVAW) spoke at Winter Soldier in 1971 in Washington, D.C., decrying militarism and war:

We are here in Washington also to say that the problem of this war is not just a question of war and diplomacy. It is part and parcel of everything that we are trying as human beings to communicate to people in this country, the question of racism, which is rampant in the military, and so many other questions also, the use of weapons, the hypocrisy in our taking umbrage in the Geneva Conventions and using that as justification for a continuation of this war, when we are more guilty than any other body of violations of those Geneva Conventions, in the use of free fire zones, harassment interdiction fire, search and destroy missions, the bombings, the torture of prisoners, the killing of prisoners, accepted policy by many units in South Vietnam. That is what we are trying to say. It is part and parcel of everything.

I would be curious to know if Kerry as the new Secretary of State remembers the importance of his testimony in 1971 and what his brothers at VVAW think of him now.

The same Mother Jones article deftly points out that:

Barack Obama has a plan to withdraw troops from Afghanistan, but neither candidate [Democratic or Republican] actually has a plan to end the war that started on September 11, 2001. Both parties accept that conflict as a permanent feature of American life. An American citizen in the U.S. is as likely to be killed by their own furniture as a Muslim terrorist, but fear of violent Islamic extremism has changed this country almost irrevocably.

But let’s compare... are the Democratic and Republican Party really just the same party on issues like national security?

ProPublica recently did a side-by-side comparison of Bush and Obama policies on the use of torture, surveillance, and detention and the results are not very surprising.

To Obama’s credit, CIA “black sites” (outsourced torture sites to foreign countries) and “enhanced interrogation techniques” (also known in the vernacular as “torture”) have been, as far as the American public is aware, discontinued and stopped by this administration.

But... Obama has continued the following policies started by Bush and ramped them up dramatically under his administration:

• Continued renewal of the Patriot Act;
• Wiretaps and data collection of U.S. citizens and foreign nationals;
• Continuation of Guantanamo prison as an indefinite detention center;
• Targeted killings (also known as “assassinations”) of U.S. citizens and foreign nationals without legal oversight;
• Significant increase of drone strikes in Afghanistan, Pakistan, Yemen, Somalia, and possibly now in Mali, that have killed thousands of civilians;
• The use of military commissions to nullify the rights of U.S. citizens and foreign nationals in civilian court.

On issues of national security, America really remains a one-party system that use the “War on Terror” as an excuse to abrogate civil liberties of its’ citizenry.

“You may ask yourself, where does that highway lead to?” -- Talking Heads ("Once in a Lifetime")

In the second installment of this article, I will investigate the use of assassination by "Star Chamber” and how a subjugated and cravenly media has led us down the highway of a fearful nation with fewer and fewer civil liberties.

[Rag Blog contributor Jim Turpin is an Austin activist and writer who works with CodePink Austin. He also volunteers for the GI coffeehouse Under the Hood Café at Ft. Hood in Killeen, Texas. Read more articles by Tim Turpin on The Rag Blog.]

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Richard Raznikov : Battlefield America

"Dissent is terrorism." Art by Anthony Freda / Activist Post.
Battlefield America:
'We had to make some sacrifices...'

There are no more legal barriers to arrest without warrants, prison without lawyers, condemnation and even execution without trial.

By Richard Raznikov / The Rag Blog / March 8, 2012

There was a declaration in the Congress during the passage of the National Defense Authorization Act, to the effect that in the "war on terror" the United States was a part of the field of battle.

This statement was made by Senator Lindsey Graham, among others. It was consequent to the continuing fantasy that we now live in a "post-9-11 world" which, presumptively, means that the laws which have protected Americans from their government for 200 years no longer apply.

Sorry about your freedom, but we had to make some sacrifices to keep you free.

Because of 9-11, we were told, we needed the grotesquely-named "Patriot Act" which took large pieces out of the Bill of Rights. In order to be safe from the "enemy" we had to give up the Constitution. The Patriot Act was passed as emergency legislation with no debate. The senators and representatives who voted for it did not read it. For that alone, they deserve impeachment and removal from office.

But betraying the country is no longer a crime when it’s done by the government.

It seemed at the time like an odd construction, the insistence that America’s own turf was now a part of the battlefield, but that’s what Graham and others insisted.

There were reasons for this.

For one thing, as the NDAA legislation makes clear, the protection afforded Americans from the use of the army against us, the so-called Posse Comitatus Act, has effectively been nullified. Last month, the army conducted "exercises" with Homeland Security operatives and the L.A. police force in a section of downtown Los Angeles.

For another, by calling the United States part of the battlefield, the president, any president, can direct the army to arrest and detain without trial any citizen "suspected" of actions in "support" of an "enemy." The person imprisoned with no rights, in violation of the most fundamental clauses of the Constitution, can’t get judicial review and may never be released because the "war" against "terror" is a war which will by definition never end.

Pretty neat trick, huh?

Last time I looked, only fascist countries and totalitarian regimes did these sort of things. I must’ve been mistaken.

A week ago, in testimony before the Senate Judiciary Committee, Steven G. Bradbury, former acting assistant Attorney General, principal deputy for the Office of Legal Counsel, and one of the authors of the infamous Bush "torture memos," told Senators that an amendment to the NDAA which would exempt American citizens from indefinite detention without charge or trial would be a mistake.

...the evident purpose of the legislation is to prevent the President from detaining as an enemy combatant under the laws of war, without criminal charge, any American citizen or lawful permanent resident of the United States who is apprehended in this country, even if the person is captured while acting as part of a foreign enemy force engaged in acts of war against the United States, such as a U.S.-based terrorist recruit of al Qaeda acting to carry out an armed attack within our borders...

Bradbury believes such a limit would hamper the President in waging the war against terror. America’s a battlefield, he believes, echoing the words of Graham and Chuck Grassley, the senator who brought him in to testify, and that means that anyone on the side of the "enemy" should not be able to count on the protection of the Bill of Rights.

According to an article on the hearing by Kevin Gosztola in Firedoglake, Graham, who was present, "contended the 'homeland' was part of the battlefield and reading Miranda rights is not the best way to collect intelligence. He firmly asserted that homegrown terrorism could be a problem and he wanted the legal system to recognize 'the difference between fighting a crime and fighting a war.'"

No, reading a suspect ‘Miranda rights’ was never the best way to get a confession, either. A rubber hose or simple, repetitive beatings, or simulated drownings, for that matter, could get people to confess to anything just to make it stop. The use of torture, which Obama claimed to oppose but which his administration continues to authorize, is good only for the purpose of satisfying the perverse, sadistic interests of the torturers; nobody in law enforcement thinks it extracts much truth.

Bradbury testified that since President Obama believes he has the authority to order the killing of American citizens in other countries -- such as the victims of U.S. targeted drones in Yemen -- it doesn’t make sense that such a target could become entitled to constitutional rights simply by “making it to the homeland.”

See where this is going?

If the "war" against "terror" is fought everywhere on earth, and if Americans can be legally killed by order of the President on foreign soil, then the President can order the killing of American citizens anywhere, including the United States.

Attorney General Eric Holder. Image from MSNBC.
That was the point of Lindsey Graham’s continued harping on the "battlefield" terms; that was the point of the NDAA and its lightning-swift passage through a somnolent and hopelessly corrupt Congress which barely raised any questions. If America is part of the battlefield, whatever may be legally done on a battlefield may be done here, right here, maybe in L.A. or Oakland, or wherever you live.

True, the use of drone attacks might have to be minimized; too much political fallout from killing a bunch of neighbors along with the "enemy" suspect.

A year ago, the idea that the President had initiated use of death lists, lists of people who were to be killed by the CIA, was considered fanciful or paranoid. Such a claim in the New Yorker by Pulitzer Prize winner Sy Hersh, drew little public response and no Congressional outcry. Now, it’s a conceded fact. And still very few object.

Now, Attorney General Holder, obviously speaking for Obama, tells Congress that the President has the right to order the assassination of whomever he wants. And if America’s now in a permanent state of war, and if that war is taking place right here, in the Fatherland, then there is nothing to prevent Obama -- or any future president -- from killing people, or simply letting the army do it.

That is the situation. It’s not exaggerated. Right now, the U.S. uses death lists. Right now, people are targeted for assassination not because of what anyone’s proven them to do but because of what they are said to have done, or even are said to be thinking of doing.

Obama and Holder are telling us that in plain English. Right now, with the Patriot Act and NDAA, the U.S. is considered part of the "battlefield," which means that the army may do to anyone suspected of wrongful behavior, or of planning such behavior, whatever it wishes. That gives the formerly proscribed act known as prior restraint a whole new meaning.

There are no more legal barriers to arrest without warrants, prison without lawyers, condemnation and even execution without trial. It is a situation so antithetical to what America has by law always been that it is beyond belief. Yet it is so.

Here’s Holder again:

Now, let me be clear. An operation using lethal force in a foreign country targeted against a U.S. citizen who is a senior operational leader of al-Qaeda or associated forces and who is actively engaged in planning to kill Americans would be lawful at least in the following circumstances: first, the U.S. government has determined after a thorough and careful review that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The government “has determined.” “Careful review.” “Capture is not feasible.”

And this:

Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaeda or associated forces. This is simply not accurate. Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process. It does not guarantee judicial process.

If due process under the American system, under the Bill of Rights, does not consist of judicial process, of what does it consist? For Holder and Obama, it consists of their own judgment. Don’t worry. Your government will not mistreat you.

Holder:

Some have called such operations "assassinations." They are not. And the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons that I have given, the U.S. government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful, and therefore would not violate the executive order banning assassination or criminal statutes.

“Self-defense” against someone who has yet done nothing but who “presents an imminent threat” as determined by, well, by the government.

And Barack Obama, on the heels of drone attacks which have specifically targeted not only individuals, such as the 16-year-old son of Anwar al-Awlaki, but funeral processions and first responders, such as medical teams, had this to say:

I want to make sure that people understand, actually, drones have not caused a huge number of civilian casualties. For the most part, they have been very precise precision strikes against al-Qaeda and their affiliates. And we are very careful in terms of how it’s been applied.

So, I think that there’s this perception somehow that we’re just sending in a whole bunch of strikes willy-nilly. This is a targeted, focused effort at people who are on a list of active terrorists who are trying to go in and harm Americans, hit American facilities, American bases, and so on. It is important for everybody to understand that this thing is kept on a very tight leash.

People who have not attacked America but who “are trying to go in and harm Americans” based on the secret information that we have. The President wants people to understand.

I understand, all right. Here’s Hina Shamsi, an ACLU lawyer, on Democracy Now!:

President Obama has used more targeted killings than the Bush administration ever did. And we do not have the memos, the Office of Legal Counsel memos, that justify the targeted killing policy. And so, very disappointingly, we see the administration claiming a broad and dangerous authority without adequate public transparency, disclosure, and refusing to defend its authority in the courts.

We do not get to see the memos, the memos that "justify" murdering, that is using "lethal force" against Americans, drafted by a government agency. Thanks for the transparency, Mr. President, that you promised. But don’t worry, we trust you. You would never lie to us. You would never violate the constitution. You want to make sure that people understand.

I understand, all right, and so do plenty of other people. This Constitution means something to us, brother, and we're not giving it up just yet.

[Rag Blog contributor Richard Raznikov is an attorney practicing in San Rafael, California. He blogs at News from a Parallel World. Find more articles by Richard Raznikov on The Rag Blog.]

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Bob Fitrakis and Harvey Wasserman : Hell of a Way to Begin a Year

Image from DNY59 / iStockphoto / MNN.
Apocalypse now!
Death knell for civil liberties

It's a hell of a way to begin a year many believe will mark the end of the world.

By Bob Fitrakis and Harvey Wasserman / The Rag Blog / January 23, 2012

In case you missed it, President Barack Obama has signed a death knell for the Bill of Rights. It's a hell of a way to begin a year many believe will mark the end of the world.

The National Defense Authorization Act (NDAA) makes a mockery of our basic civil liberties. It shreds the intent of the Founders to establish a nation where essential rights are protected. It puts us all at risk for arbitrary, indefinite incarceration with no real rights to recourse.

The Act authorizes a $626 billion dollar defense budget (which does not include the CIA, special ops, various black box items, etc.). Obama's signing statement says it does address counterterrorism at home and abroad as well as Defense Department modernization, health care costs, and more.

But it also includes Sections 1021 and 1022, bitterly opposed by the American Civil Liberties Union and Human Rights Watch, among many others. The New York Times urged Obama to veto the bill because of them. The UK-based Guardian said NDAA 2012 allows for indefinite detention of U.S. citizens "without trial [of] American terrorism subjects arrested on U.S. soil, who could then be shipped to Guantanamo Bay." The Kansas City Star was equally blunt, stating that the NDAA is "trampling the bill of rights in defense's name."

Section 1021 reasserts the President's authority to use the military 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." It also includes the military's power to detain anyone who commits a "belligerent act" against the U.S. or its coalition allies under the law of war.

Despite widespread public pressure, Obama did not veto the bill. In his signing statement he said: "I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."

Citing the Authorization for Use of Military Force (AUMF) passed by the United States Congress on September 14, 2001, the NDAA states that those detained may be detained "without trial, until the end of the hostilities authorized by the [AUMF]." The NDAA also allows trial by military tribunal, or "transfer to the custody or control of the person's country of origin," or transfer to "any other foreign country or any other foreign entity." This last practice is known as "rendition."

It's been widely documented that the United States has used rendition as a way to let individuals be tortured outside of U.S. soil. "Extraordinary rendition" -- used during the second Bush administration -- is the kidnapping and transfer of individuals to a third country for purposes of "enhanced interrogation," otherwise known as torture.

An amendment to the NDAA offered by Senator Mark Udall forbidding the indefinite detention of U.S. citizens failed by a vote of 37-61. A compromise amendment to preserve current law concerning the detention of U.S. citizens and lawful resident aliens within the United States proposed by Senator Dianne Feinstein passed, but only sparked more controversy.

Feinstein insisted the reference to current law meant that U.S. citizens could not be indefinitely detained, while Senators Carl Levin and John McCain argued that it does allow indefinite detention. Senator Levin cited the Supreme Court as stating that, "There is no bar to this nation's holding one of its own citizens as an enemy combatant."

Section 1022 of the NDAA deals with the "Requirement for military custody." Section 1022 requires that all persons arrested and detained under Section 1021, including those detained on U.S. soil whether held indefinitely or not, will be in the custody of the United States Armed Forces. Thus, Section 1022 of the NDAA 2012 clearly allows the U.S. military the option to arrest and indefinitely detain U.S. citizens.

The ACLU stated that, "The statute contains a sweeping worldwide indefinite detention provision… [without] temporal or geographic limitations, and can be used by this and future Presidents to militarily detain people captured far from any battlefield."

Civil libertarians are calling for the specific repeal of Sections 1021 and 1022, asking elected officials to come out in favor of this repeal. Civil libertarian activists are also calling on local governments to pass ordinances and statutes declaring their municipalities and states "Bill of Rights Enforcement Zones" or "Rendition-free Zones."

The ACLU believes that "the breadth of the NDAA's detention authority violates international law because it is not limited to people captured within the context of an actual armed conflict as required by the laws of war." Sections 1021 and 1022 pose a threat to U.S. citizens on U.S. soil who may be seized and held indefinitely because of so-called "belligerent acts."

For a long while we have been hearing apocalyptic predictions about the end of the world through solar flares, natural disasters, invasions from outer space, and the like. All that is believed to be slated for December 2012.

But what most of the nation doesn't realize is that the end of our basic civil liberties, in place since the December 1791, ratification of the Bill of Rights, has already taken place.

[Bob Fitrakis and Harvey Wasserman have co-authored four books about election protection. Bob's Fitrakis Files are at freepress.org, where this article was first published. Harvey Wasserman's History of the U.S. is at HarveyWasserman.com, along with Solartopia! Our Green-powered Earth. Read more of Harvey Wasserman and Bob Fitrakis' writing on The Rag Blog.]

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David Van Os : The Homeland Battlefield Bill

Image from Chocolate City.
The Homeland Battlefield Bill

With the stroke of Obama’s pen, the United States military has become a domestic law enforcement authority and American citizens on American soil are subject to the loss of every fundamental right to due process of law.

By David Van Os / The Rag Blog / January 3, 2012

At this turn of the standard solar calendar from the year 2011 to the year 2012, my country has taken another step down the terrible path of abandoning its dedication to the principles that made it stand out with unique brilliance in the history of the human race.

On December 31, 2011, President Barack Obama signed the National Defense Authorization Act for Fiscal Year 2012 (NDAA). Such bills are normally routine authorization and appropriation acts. This one is different. Known as the “Homeland Battlefield Bill” this act contains a section that aims a dagger at the heart of our most cherished constitutional freedoms.

Section 1031 includes the following language:

(a) In General – Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
——
(c) Disposition under law of war – The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for the Use of Military Force.”

Translation: a “covered person” may be treated as a prisoner of war.

Prisoners of war don’t get trials. They don’t get to call lawyers. They don’t get hearings to determine probable cause. They don’t get to make bail. They don’t get to apply for writs of habeas corpus.

They have no rights to any components of due process of law. They are simply detained until the war between their country and the other country is over. (Recent world history is full of brutal atrocities illegally committed against prisoners of war, but that is a different topic for a different essay.)

These are standard expectations for enemy soldiers captured in war. So what’s new?

Under this bill, every square inch of the 50 states of the United States is considered a battlefield, and American citizens suspected of supporting the so-called enemy army of terrorists may be treated as prisoners of war. With the stroke of Obama’s pen, the United States military has become a domestic law enforcement authority and American citizens on American soil are subject to the loss of every fundamental right to due process of law.

It might be a different thing if the “war on terrorism” were a war with identifiable armies and soldiers, fought by nation-states, with identifiable targets and objectives. Indeed, the standard first definition of war, according to the Merriam-Webster Dictionary, is “a state of usually open and declared armed hostile conflict between states or nations."

But this so-called war is, as Rep. Dennis Kucinich calls it, a “war without end." It is not a conflict with a nation-state. It is a conflict with criminal gangs. There is no territory or capital city that can be occupied in a visible manifestation of victory. There will be no end until the politicians decide they no longer need it as a scapegoat to distract voters from the piracy they are suffering every day at the hands of the Wall Street robber barons and their politician stooges.

In other words, it may never end. Persons detained “under the law of war without trial until the end of the hostilities” may never be released.

As Senator Al Franken said in explaining why he voted against the bill:

And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.

Franken continued that the bill

denigrates the very foundations of this country. It denigrates the Bill of Rights. It denigrates what our Founders intended when they created a civilian, non-military justice system for trying and punishing people for crimes committed on U.S. soil. Our Founders were fearful of the military -- and they purposely created a system of checks and balances to ensure we did not become a country under military rule. This bill undermines that core principle.

A “covered person” under the bill is:

(b)(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(b)(2) 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.

Well, you might think, no problem. This law only targets the bad guys. Innocent citizens are not in any danger of “disposition under the law of war."

But the whole point of due process of law, the whole point of the English nobles who forced King John to sign the Magna Charta in 1215, the whole point of our fundamental concept that a person accused of a crime is innocent until proven guilty, the whole point of the requirements of probable cause and warrants, the whole point of the right to a fair trial, the whole point of the right to call a lawyer, the whole point of being able to apply to a court for a writ of habeas corpus, is that there are checks and balances to prevent false accusations, false arrests, false convictions, and false imprisonment.

Under the power that has been handed over to the federal government in the new Defense Authorization Act, the checks and balances, the very essence of Constitutional democracy, will be abolished for any American at any time against whom the government decides to level a charge of supporting terrorists. The accusation may be a complete fabrication but there will be nothing the accused citizen can do about it.

The unprincipled politicians who passed this bill occupy both major political parties. Many Democrats in the House and Senate supported it, and a few Democrats opposed it. Many Republicans in the House and Senate supported it, and a few Republicans opposed it.

The apologists for the bill will point to subsection (e), which states:

Nothing in this section shall be construed to 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.

Don’t be fooled by this hollow exercise of political pacification. If you are locked up in a military jail as a prisoner of war with no right to call a lawyer and no right to a hearing or to see the evidence against you, how will you invoke the purported “existing law” this sop extends to you? The same people who locked you up will decide what the “existing law and authorities” are and what they mean. Without due process of law or checks and balances, the “law” is nothing.

Basically, the Homeland Battlefield Bill subjects all Americans to the awful possibility of being treated the way thousands of innocent Japanese-American citizens were treated during World War II, their freedoms abolished through internment in camps for the duration of the war.

Remember John Yoo and Alberto Gonzales? Basically, the Congress in passing this bill, and the President in signing it, rehabilitated the sick and subversive constitutional theories that Yoo and Gonzales promoted during the darkest days of the Cheney-Bush regime.

The apologists may also say that under the U.S. Supreme Court decision in Hamdi v. Rumsfeld the federal courts will recognize a right of access to the judiciary to challenge military detentions. Speaking as a lawyer, I agree it is possible that may happen in the federal courts. Also speaking as a lawyer, I remind the apologists that it takes courageous lawyers, piles of money, and years of languishing to get major constitutional cases resolved in the courts.

I am glad for the possibility of judicial correction, but it does not excuse the politicians for what they have done, nor will any successful court challenge give a citizen back the years of freedom lost waiting for the fulfillment of judicial review. Speaking as an American who loves my country and its Constitutional heritage, I am appalled, disgusted, sick at heart, and mad as hell.

[David Van Os is a populist Texas democrat and a civil rights attorney now living in Austin. He is a former candidate for Attorney General of Texas and for the Texas Supreme Court. To receive his Notes of a Texas Patriot -- circulated whenever he gets the urge (and published on The Rag Blog whenever we get the urge) -- contact him at david@texas-patriot.com. Read more articles by David Van Os on The Rag Blog.]

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