And 9 more states are working on similar legislation.
And 9 more states are working on similar legislation.
In three earlier posts, I have discussed the problem with turning the FISA Court into the Drone and/or Targeted Killing Court: As I noted, the existing FISA Court no longer fulfills the already problematic role it was set up to have, ensuring that the government have particularized probable cause before it wiretap someone. On the contrary, the FISA Court now serves as a veil of secrecy behind which the government can invent new legal theories with little check.
In addition, before the FISA Court started rubberstamping Drone Strikes and/or Targeted Killings of Americans, presumably it would need an actual law to guide it. (Though Carrie Cordero, who is opposed to the Drone and/or Targeted Killing FISA Court idea because it might actually restrain the Executive, seems to envision the Court just using the standards the Executive has itself invented.) And there’s a problem with that.
The same Congress that hasn’t been successful passing legislation on detention in the 2012 NDAA is certainly not up to the task of drafting a law describing when targeted killing is okay.
[The] calls for a FISA Drone and/or Targeted Killing Court are just Congress’ (DiFi’s especially) effort to punt this to a place where it won’t embarrass Congress for their refusal to rein in the Executive Branch anymore. The push to give FISA review over this authority is just an attempt to stick this all someplace we can’t see it anymore, not to impose any meaningful review of the Executive. [READ ALL]
As long as the War on Terrorism is being fought with its current policies in tact [i.e. as long as the 2001 AUMF remains as the backbone of post-legal America], Americans can count on presidents who differ little from their predecessor on civil liberties. They will never defend due process, free speech, press freedom, privacy or rights to liberty and justice and risk constraining the ability of government to fight enemies abroad. Each president will be the same or worse than the previous president.
MATT SLEDGE: I think—we’ll get to, you know, WikiLeaks and whistleblowing in a minute, of course. Before we do that, I wanted to re-ask my question from the last panel about this drones memo. You know, what’s the end game with this—with the lawsuit [against the NDAA]? You know, if you win the lawsuit and the administration retains the power to assassinate American citizens, you know, how—is that Pyrrhic victory?
CHRIS HEDGES: The memo is fascinating to read. It looks like it’s written—
MS: Well, they won’t release the memos yet.
CH: Yes, well, the free white paper.
MS: It’s a white paper, the pre-memo white paper.
CH: The white paper. Right, the pre-memo white paper. What is—because it’s so amateurish. It looks like it’s written by a first-year law student. I mean, you know, whatever you think of John Yoo—and I hope he burns in hell—he actually had a much more sophisticated legal argument to torture human beings. Look, the drone wars—this is—it’s not an example of—and I think this is true with the NDAA, I think it’s true with the FISA Amendment Act, I think—go all the way back. What they’re attempting to do is legally justify what they’re already doing. They have argued that under the 2001 Authorization to Use Military Force Act they have a right to assassinate American citizens. I have read that act innumerable times, and Bruce and Carl did, and none of us find that in the act. That is, to be generous, a radical interpretation of the AUMF. And so, what they’re seeking to do is legally justify, in the same way that Yoo was attempting to legally justify torture. They’re essentially looking for kind of legal cover.
And so, I think it’s all connected. It’s all a part of this very rapid descent into a frightening form of corporate totalitarianism. And that is just writ large across the landscape. And as we go down—and they know we’re going down. Look, I mean, you know, they—these forces are cannibalistic. Forty percent of the summer Arctic sea ice melts, and here we’re literally watching the death throes of the planet, and these corporations, like Shell, look at it as a business opportunity. They know only one word, and that’s “more.” They have commodified everything. Human beings are commodities, disposable commodities. The ecosystem is a disposable commodity. And they will—now with no impediments, they will push and push and push. It makes Herman Melville’s Moby Dick, which I’m just re-reading, the most prescient study of the American character, because we’re all on the Pequod, and Ahab’s running the ship. And as Ahab said, “My means and my methods are sane, and my object is mad.” And they’re not going to stop themselves. The formal mechanisms of power are not going to stop them. It’s up to us.
And literally, you know, I have a five-year-old, and his favorite book is Out of the Blue. He’ll sit on the floor and look at narwhals and porpoises, and every time I see him do it, it rips my heart out, because I know that if there is not a radical change in our relationship to each other and to the planet, every single one of those sea creatures will be dead within his lifetime. In theological terms, as a seminary graduate, these are forces of death, literally.
CH: And it is all—
MS: Which is the corporation arguing, you know, or lobbying for Section 1021 of the NDAA?
CH: All of them. All of them. Who writes our legislation but corporate lobbyists? The security and surveillance state is the mechanism. Look, we have, not far from here, a few blocks from here, a joint command center with the NYPD and Goldman Sachs. I was arrested in front of Goldman Sachs with the Occupy movement. And let me tell you that when they—when the security came out, it was a mixed security of Goldman Sachs security and NYPDsecurity. These corporations have created 70 percent of our—we have 16 intelligence agencies, and as Jeremy Scahill has pointed out, 70 percent of their work are outsourced corporations. We have handed the capacity for the security and surveillance state to private corporations.
If you are in New York City right now, please try to make your way to 40 Centre St. to support the 7 plaintiffs & 2 attorneys challenging the NDAA in a lawsuit.
The Second Circuit Court of Appeals is hearing “Hedges vs. Obama” at this very moment.
Show your support.
On Wednesday, Obama signed the 2013 National Defense Authorization Act, a $633-billion blueprint for Pentagon spending that is objectionable for both what it contains and what it omits. Like last year’s version, the act prohibits the use of Defense Department funds to transfer inmates at Guantanamo Bay, Cuba, to the United States, effectively making it impossible for Obama to fulfill his long-deferred promise to close the facility or to try some of the detainees in civilian courts. And the act lacks language making it clear that the military’s authority to detain suspected terrorists does not extend to U.S. citizens.
The LA Times editorial board lays into Obama on civil liberties.
The New York Times lashed out on Friday over the secrecy surrounding targeted killing.
President Obama has utterly failed the first test of his second term, even before inauguration day. His signature means indefinite detention without charge or trial, as well as the illegal military commissions, will be extended. He also has jeopardized his ability to close Guantanamo during his presidency. Scores of men who have already been held for nearly 11 years without being charged with a crime—including more than 80 who have been cleared for transfer—may very well be imprisoned unfairly for yet another year. The president should use whatever discretion he has in the law to order many of the detainees transferred home, and finally step up next year to close Guantanamo and bring a definite end to indefinite detention.
Anthony Romero, executive director of the American Civil Liberties Union, NDAA Prevents Closing Guantanamo, Could Lead to Claims of a Right to Discriminate
Obama signs NDAA 2013 without objecting to indefinite detention of Americans
January 3, 2013
President Barack Obama signed the National Defense Authorization Act of 2013 on Wednesday, giving his stamp of approval to a Pentagon spending bill that will keep Guantanamo Bay open and make indefinite detention for US citizens as likely as ever.
The president inked his name to the 2013 NDAA on Wednesday evening to little fanfare, and accompanied his signature with a statement condemning a fair number of provisions contained in a bill that he nevertheless endorsed.
The NDAA, an otherwise mundane annual bill that lays out the use of funds for the Department of Defense, has come under attack during the Obama administration for the introduction of a provision last year that allows the military to detain United States citizens indefinitely without charge or trial for mere suspicions of ties to terrorism. Under the 2012 NDAA’s Sec. 1021, Pres. Obama agreed to give the military the power to arrest and hold Americans without the writ of habeas corpus, although he promised with that year’s signing statement that his administration would not abuse that privilege.
In response to the controversial indefinite detention provision from last year, Sen. Dianne Feinstein (D-California) introduced an amendment in December 2012 that would have forbid the government from using military force to indefinitely detain Americans without trial under the 2013 NDAA. Although that provision, dubbed the “Feinstein Amendment,” passed the Senate unanimously, a select panel of lawmakers led by Senate Armed Services Committee Chairman Carl Levin (D-Michigan) stripped it from the final version of the NDAA two week later before it could clear Congress. In exchange, Congress added a provision, Sec. 1029, that claims to ensure that “any person inside the United States” is allowed their constitutional rights, including habeas corpus, but supporters of the Feinstein Amendment say that the swapped wording does nothing to erase the indefinite detention provision from the previous year.
“Saying that new language somehow ensures the right to habeas corpus – the right to be presented before a judge – is both questionable and not enough. Citizens must not only be formally charged but also receive jury trials and the other protections our Constitution guarantees. Habeas corpus is simply the beginning of due process. It is by no means the whole,” Sen. Rand Paul (R-Kentucky) said after the Feinstein Amendment was removed.
“Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience. When I entered the United States Senate, I took an oath to uphold and defend the Constitution. It is for this reason that I will strongly oppose passage of the McCain conference report that strips the guarantee to a trial by jury,” Sen. Paul added.
Although the Pres. Obama rejected the indefinite detention clause when signing the 2012 NDAA, a statement issued late Wednesday from the White House failed to touch on the military’s detainment abilities. On the other hand, Pres. Obama did voice his opposition to a number of provisions included in the latest bill, particularly ones that will essentially render his promise of closing the Guantanamo Bay military prison impossible.
Despite repeated pleas that Gitmo will be closed on his watch, Pres. Obama failed to do as much during his first term in the White House. Thanks to a provision in the 2013 NDAA, the Pentagon will be unable to use funds to transfer detainees out of that facility and to other sights, ensuring they will remain at the top-secret military prison for the time being.
“Even though I support the vast majority of the provisions contained in this Act, which is comprised of hundreds of sections spanning more than 680 pages of text, I do not agree with them all. Our Constitution does not afford the president the opportunity to approve or reject statutory sections one by one,” Pres. Obama writes.
Congress, claims the president, designed sections of the new defense bill “in order to foreclose my ability to shut down the Guantanamo Bay detention facility.”
“I continue to believe that operating the facility weakens our national security by wasting resources, damaging our relationships with key allies and strengthening our enemies,” he says.
Elsewhere, the president claims that certain provisions in the act threaten to interview with his “constitutional duty to supervise the executive branch” of the United States.
Before the 2013 NDAA was finalized, it was reported by the White House that Pres. Obama would veto the legislation over the provisions involving Guantanamo Bay. Similarly, the White House originally said the president would veto the 2012 NDAA over the indefinite detention provisions, although he signed it regardless “with reservations” on December 31 of that year.
Since authorizing the 2012 NDAA, the president has been challenged in federal court by a team of plaintiffs who say that the indefinite detention clause is unconstitutional. US District Judge Katherine Forrest agreed that Sec. 1021 of the 2012 NDAA violated the US Constitution and granted a permanent injunction on the Obama administration from using that provision, but the White House successfully fought to appeal that decision.
Commenting on the latest signing, American Civil Liberties Union Executive Director Anthony Romero says, “President Obama has utterly failed the first test of his second term, even before inauguration day.”
“His signature means indefinite detention without charge or trial, as well as the illegal military commissions, will be extended,” adds Romero. ”He also has jeopardized his ability to close Guantanamo during his presidency. Scores of men who have already been held for nearly 11 years without being charged with a crime—including more than 80 who have been cleared for transfer—may very well be imprisoned unfairly for yet another year. The president should use whatever discretion he has in the law to order many of the detainees transferred home, and finally step up next year to close Guantanamo and bring a definite end to indefinite detention.”
This administration can indefinitely detain you without due process… but don’t worry: President Obama promises not to abuse this privilege.
Between the continued drone war campaign overseas, GITMO staying open, drone strikes targeting Americans being kept secret & indefinite military detention of Americans without charge or trial, the Obama administration is on a civil liberties slashing spree for 2013. & it’s only January 3.
… [Of] course the whole world now knows, post 9/11, that all foreigners are potential terrorists and are now being watched/snatched/extraordinarily rendered/tortured/assassinated with impunity. In Europe we have had many people suffer this way and some have managed to achieve recognition and restitution. That appears to do little to stop the drone wars and blood-letting that the USA has unleashed across the Middle East.
But the NDAA and the extended FISA should at least rouse the ire of Americans themselves: US citizens on US soil can now potentially be targeted. This is new, this is dangerous, right?
Well, no, not quite, as least as far as the interception of communications goes.
The Echelon system, exposed in 1988 by British journalist Duncan Campbell and reinvestigated in 1999, put in place just such a (legally dubious) mechanism for watching domestic citizens. The surveillance state was already in place, even if through a back door, as you can see from this article I wrote 4 years ago, which included the following paragraph:
ECHELON was an agreement between the NSA and its British equivalent GCHQ (as well as the agencies of Canada, Australia, and New Zealand) whereby they shared information they gathered on each others’ citizens. GCHQ could legally eavesdrop on people outside the UK without a warrant, so they could target US citizens of interest, then pass the product over to the NSA. The NSA then did the same for GCHQ. Thus both agencies could evade any democratic oversight and accountability, and still get the intelligence they wanted.
The only difference now is that FISA has come blasting through the front door, and yet people remain quiescent.
The corporate state knows that the steady deterioration of the economy and the increasingly savage effects of climate change will create widespread social instability. It knows that rage will mount as the elites squander diminishing resources while the poor, as well as the working and middle classes, are driven into destitution. It wants to have the legal measures to keep us cowed, afraid and under control. It does not, I suspect, trust the police to maintain order. And this is why, contravening two centuries of domestic law, it has seized for itself the authority to place the military on city streets and citizens in military detention centers, where they cannot find redress in the courts. The shredding of our liberties is being done in the name of national security and the fight against terrorism. But the NDAA is not about protecting us. It is about protecting the state from us. That is why no one in the executive or legislative branch is going to restore our rights. The new version of the NDAA, like the old ones, provides our masters with the legal shackles to make our resistance impossible. And that is their intention.
Chris Hedges (via azspot)
$633 billion and no change to the indefinite detention clauses. There’s still a veto threat (ostensibly over Guantánamo), but I wouldn’t hold my breath waiting for it.
Lawyers involved in bringing a lawsuit against an indefinite detention provision in the 2012 National Defense Authorization Act (NDAA) have expressed outrage over a Congressional conference committee decision to remove an amendment offered by Sen. Dianne Feinstein that she thought would ban the indefinite detention of US citizens.
Michael B. Kelley for Business Insider reports Carl Mayer, a lawyer representing journalists and activist suing the United States government, declared, “The actions of both parties and the president regarding the NDAA and the power of the military to police the streets of America is shameful…They did what they always do: they posture in public with meaningless votes (i.e. the Feinstein Amendment) and statements and this allows both Republicans and Democrats to pretend to their base that they are fighting for them. In reality, they are protecting the status quo and endangering the freedoms of all Americans.”
Kelley also spoke to lawyer Bruce Afran (who I posted an interview with yesterday). Afran told Kelley that it proved Congress was unwilling to “protect civil liberties” and also showed “Democrats are afraid to be seen as defending the Constitution for fear of being labeled weak on national security.”
Reports on the Feinstein Amendment being dropped have characterized the amendment as a “ban” on indefinite military detention. To set the record straight, it actually would have gone a long way toward further codifying powers of military detention by exempting US citizens or permanent residents from being held indefinitely without charge or trial by the military. That would have made it legal for people here in the US, like students with visas, tourists or even immigrants, to be indefinitely detained.
The Feinstein Amendment, which Sen. Dianne Feinstein wanted us all to believe would ban military indefinite detention of US citizens or permanent residents, actually did not bar the military from detaining such people. It just aimed to require the government to ensure those being held were offered due process and able to get to court for a trial. The kind of trial, as Afran explained, would have been a military trial because that is all that is referenced in the NDAA.
Now, according to POLITICO‘s Josh Gerstein, Sen. Carl Levin said, “Language the House proposed was replaced with language that indicates that last year’s NDAA shouldn’t be interpreted to preclude Habeas Corpus suits by persons detained in the US.” That should not be acceptable to anyone concerned about the codification of military indefinite detention.
Judge Katherine Forrest, who issued a permanent injunction against the indefinite detention provision in the 2012 NDAA in September, outlined in her ruling how habeas review was woefully inadequate:
The Government also argues that, at most, the Court’s role should be limited to a post-detention habeas review. That argument is without merit and, indeed, dangerous. Habeas petitions (which take years to be resolved following initial detention) are reviewed under a “preponderance of the evidence” standard (versus the criminal standard of “beyond a reasonable doubt”) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous. If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.
This is what senators and representatives in Congress have replaced the Feinstein Amendment with—language that is essentially the Obama administration’s position on the limited role the courts should play in deciding whether a person is being properly detained indefinitely by the military or not.
Moreover, as Gerstein reported, “Levin and some other senators had argued that the amendment Feinstein put forward to require explicit Congressional authorization for any detention of Americans on U.S. soil would have no real effect because courts had interpreted Congress’s 2001 Authorization for the Use of Military Force as granting authority for detention. However, notwithstanding Levin’s position, the AUMF does not explicitly grant that authority.”
Levin and these senators are actually incorrect. They clearly have not read Judge Forrest’s ruling, which led the Obama administration to file an appeal with the Second Circuit Court of Appeals. She wholly rejected the argument by the government that the 2012 NDAA was redundant and simply included a power of indefinite detention that was in the AUMF. (But, perhaps, the senators just really don’t care and are parroting legal advice from lawyers in the Justice Department, who at this very moment are arguing in the courts that the power of the military to indefinitely detain US citizens should be preserved.) [++]
A Congressional conference committee tasked with merging the House and Senate versions of the 2013 National Defense Authorization Act (NDAA) decided to drop the Feinstein amendment, which ostensibly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects.
And even though that there was a giant loophole in the Feinstein amendment that made it effectively useless, the lawyers challenging the NDAA in court had some sharp words for the decision to strip the provision.
“The actions of both parties and the president regarding the NDAA and the power of the military to police the streets of America is shameful,” Carl Mayer, one of the lawyers representing the journalists and activists suing the government over the indefinite detention provisions of the 2012 NDAA, told BI. “They did what they always do: they posture in public with meaningless votes (i.e. the Feinstein Amendment) and statements and this allows both Republicans and Democrats to pretend to their base that they are fighting for them. In reality, they are protecting the status quo and endangering the freedoms of all Americans.”
Bruce Afran, the other lawyer for the NDAA plaintiffs, reinforced the point that the move signals how members of both parties are allowing Americans to be detained indefinitely under the laws of war.
“It is clear that there is not enough will in Congress to protect civil liberties and that the Democrats are afraid to be seen as defending the Constitution for fear of being labeled weak on national security,” Afran said.
The 2013 NDAA makes it easier to detain citizens indefinitely by explicitly stating that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF], which gives the president the authority to indefinitely detain anyone involved in carrying out the 9/11 terrorist attacks.The NDAA plaintiffs successfully argued in federal court that the NDAA expands the powers of the AUMF to allow the indefinite detainment of those, including Americans, who commit a “belligerent act” or provides “substantial support” to the Taliban, al-Qaeda or “associated forces,” and the relevant provisions were permanent blocked.
But these provisions were reinstated on appeal by the government, meaning that the power to indefinitely detain Americans is in effect and will continue to be after the 2013 NDAA is enacted.
“The reality is that the Congress has passed and the President will sign another anti-freedom, anti-constitutional, anti-civil liberties bill during the holiday season in the hope that they can again bamboozle the citizenry and sneak in another assault on our freedoms while people are not paying attention,” Mayer said. [++]