NDAA 2014 underwrote $662 billion for continued US aggression in our many foreign wars while, on the domestic front, it violates the Bill of Rights. According to the American Civil Liberties Union, it authorizes presidents “to order the military to pick up and imprison people, including U.S. citizens, without charging them or putting them on trial” (as it did in the 2011-13 versions). The ACLU charges the provisions of NDAA “were negotiated by a small group of members of Congress, in secret, and without proper congressional review (and), are inconsistent with fundamental American values embodied in the Constitution….(our) fundamental freedoms are on the line.”
We had already had many of the provisions of the Bill of Rights supplanted by the Patriot Act. President Carter has denounced the Patriot Act for authorizing federal agents “to search people’s homes and businesses secretly, to confiscate property without any deadline or without giving notice that the intrusion had taken place, and to collect without notice personal information on American citizens including their medical histories, books checked out of libraries, and goods they purchase.”
Regardless of promises to the contrary made every year since 2011 by President Obama, 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 to nearly never-ending incarceration in a military prison.
There is in the NDAA for 2014 a frightening fusion of the federal government’s constant surveillance of innocent Americans and the assistance it will give to justifying the indefinite detention of anyone labeled an enemy of the regime.
Section 1071 of the version of the 2014 NDAA approved by the House and Senate committees in December 2013 just prior to Christmas expands on the scope of surveillance established by the Patriot Act and the Authorization for the Use of Military Force (AUMF).
Section 1071(a) authorizes the secretary of defense to “establish a center to be known as the ‘Conflict Records Research Center.’” According to the text of the latest version of the NDAA, the center’s task would be to compile a “digital research database including translations and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States.”
In order to accomplish the center’s purpose, the secretary of defense will create an information exchange in cooperation with the director of national intelligence.
Key to the functioning of this information exchange will be the collection of “captured records.” Section 1071(g)(1), defines a captured record as “a document, audio file, video file, or other material captured during combat operations from countries, organizations, or individuals, now or once hostile to the United States.”
When read in conjunction with the provision of the AUMF that left the War on Terror open-ended and the prior NDAAs’ classification of the United States as a battleground in that unconstitutional war, and you’ve got a powerful combination that can knock out the entire Bill of Rights.
Finally, when all the foregoing is couched within the context of the revelations regarding the dragnet surveillance programs of the NSA, it becomes evident that anyone’s phone records, e-mail messages, browsing history, text messages, and social media posts could qualify as a “captured record.”
After being seized by the NSA (or some other federal surveillance apparatus), the materials would be processed by the Conflict Records Research Center created by this bill. This center’s massive database of electronic information and its collaboration with the NSA converts the United States into a constantly monitored holding cell and all its citizens and residents into suspects. All, of course, in the name of the security of the homeland.
Pulitzer prize winning reporter Chris Hedges – along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others – sued the government to join the NDAA’s allowance of the indefinite detention of Americans.
The trial judge in the case asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys.
The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.
The trial judge ruled that the indefinite detention bill was unconstitutional, holding:
This Court rejects the government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.
We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were 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—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.
Monday, the U.S. Supreme Court declined to hear an appeal of the case, thus blessing and letting stand the indefinite detention law stand unchanged.
The court of appeal’s Orwellian reasoning may sound – at first blush – like it might be a good thing. After all, the court said there’s no indication that the indefinite detention provision will be applied against U.S. citizens.
However, by refusing to strike down the law and insist that any future laws explicitly exempt U.S. citizens, it leaves discretion in the hands of the executive branch.
The effect of the decision will be to allow the U.S. government to kidnap and indefinitely detain U.S. citizens who protest or dissent against the government … and the courts will never hear any legal challenge from the prisoners. The detainee will not get to say:
The courts said the indefinite detention law isn’t written to apply to U.S. citizens, so you have to let me go!
And he won’t get to say:
You’re confusing me with another John Smith, and I can prove it!
After all, prisoners can be held under the indefinite detention bill without trial, without being allowed to present evidence or hearing the evidence against them, without letting the citizen consult with a lawyer, and without even charging the citizen with any crime.
So – if you’re thrown into a hole somewhere – no one will even hear your story.
Chris Hedges noted in November:
If [the indefinite detention law] stands it will mean, as [the trial judge] pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention.
Constitutional attorney John W. Whitehead agrees:
No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.
If you think they’re crying wolf, just remember that the CIA director relabeled “dissidents” as “terrorists” in 1972 so that he could continue spying on them … and nothing has changed.
Daniel Ellsberg notes that Obama’s claimed power to indefinitely detain people without charges or access to a lawyer or the courts is a power that even King George – the guy we fought the Revolutionary War against – didn’t claim. And former judge and adjunct professor of constitutional law Andrew Napolitano points out that Obama’s claim that he can indefinitely detain prisoners even after they are acquitted of their crimes is a power that even Hitler and Stalin didn’t claim.
Access to justice is already being severely curtailed in America. Even when the prisoner is afforded a trial, it is becoming more and more common for the government to prosecute cases based upon “secret evidence” that they don’t show to the defendant, his lawyer … or sometimes even the judge hearing the case. The government uses “secret evidence” to spy on Americans, prosecute leaking or terrorism charges (even against U.S. soldiers) and even to assassinate people. And see this and this. Secret witnesses are being used in some cases. And sometimes lawyers are not even allowed to read their own briefs. Indeed, even the laws themselves are now starting to be kept secret.
But prisoners under the indefinite detention bill have it much worse: they don’t get any trial or opportunity to talk to a judge, any access to a lawyer … or perhaps any information about what they’re even accused of doing or why they were nabbed in the first place.
After the Supreme Court published its decision, Tangerine Bolen wrote:
The Supreme Court has made it abundantly clear, first via Citizens United, then most recently via McCutcheon v. FTC, that corporations are “persons” whose “free speech” must be protected at all costs – including the cost of democracy – while our rights – the rights of living, breathing people, the fundamental right of due process and our fundamental rights of free speech and association – those no longer matter. They are to be trampled.
Under the war on terror, the United States government has trampled upon the fundamental human rights of people around the world since 9/11. The Bush administration manufactured a false war based on carefully crafted lies, false evidence and sickening manipulation. In the wake of that war, our courts prefer to continue to defer to a disingenuous national security narrative that has arisen out of the lies, paranoia, and incredible lawbreaking of our own government, including kidnapping, torturing, indefinitely imprisoning, and assassinating people with impunity – all of this against both reason and international law.
We are no longer a nation ruled by laws. [She’s right.] We are nation ruled by men who have so steeped themselves in a false narrative that at the same time they are exponentially increasing the ranks of terrorists, they are destroying the rule of law itself. [Indeed, we’ve gone from a nation of laws to a nation of powerful men making one-sided laws to protect their own interests … in secret. Government folks are using laws to crush dissent. It’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.] It is madness upon madness – the classic tale of becoming the evil you purport to fight while believing you remain righteous.
We have tried to stand up to this madness: we are outnumbered, outspent, and outgunned – a David intrepidly fighting a Goliath that spans the planet and has the power to shape our “reality” – thus shaping what the courts even see. We have sacrificed greatly to do this – and yet we would do it all again.