Friday, December 16, 2011

O "National Defense Authorization Act"

Are Americans in Line for Gitmo?, por Ray McGovern (, sobre as disposições contidas no "NDAA":

Ambiguous but alarming new wording tucked into the National Defense Authorization Act (NDAA) and just passed by the Senate is reminiscent of the “extraordinary measures” introduced by the Nazis after they took power in 1933.

And the relative lack of reaction so far calls to mind the oddly calm indifference with which most Germans watched the erosion of the rights that had been guaranteed by their own constitution. As one German writer observed, “With sheepish submissiveness we watched it unfold, as if from a box at the theater.”

The writer was Sebastian Haffner (real name Raimund Pretzel), a young German lawyer worried at what he saw in 1933 in Berlin but helpless to stop it since, as he put it, the German people “collectively and limply collapsed, yielded, and capitulated.” (...)

The Senate bill, in effect, revokes an 1878 law known as the Posse Comitatus Act, which banned the Army from domestic law enforcement after the military had been used — and often abused — in that role during Reconstruction. Ever since then, that law has been taken very seriously — until now. Military officers have had their careers brought to an abrupt halt by involving federal military assets in purely civilian criminal matters.

But that was before 9/11 and the mantra “9/11 changed everything.” In this case of the Senate-passed NDAA — more than a decade after the terror attacks and even as U.S. intelligence agencies say al-Qaeda is on the brink of defeat — Congress continues to carve away constitutional and legal protections in the name of fighting “terrorism.” (...)

The Senate voted to authorize — and generally to require — “the Armed Forces of the United States to detain covered persons” indefinitely. And such “covered persons” are defined not just as someone implicated in the 9/11 attacks but anyone who “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.”

Though the wording is itself torturous — and there is a provision for a waiver from the Defense Secretary regarding mandatory military detentions — the elasticity of words like “associated forces” and “supported” have left some civil libertarians worried that the U.S. military could be deployed domestically against people opposing future American wars against alleged “terrorists” or “terrorist states.”

The Senate clearly wished for the military’s “law and order” powers to extend beyond the territory of military bases on the theory that there may be “terrorsymps” (short for “terrorist sympathizers”) lurking everywhere.
Is the all-consuming 10-year-old struggle against terrorism rushing headlong to consume what’s left of our constitutional rights? Do I need to worry that the Army in which I was proud to serve during the 1960s may now kick down my front door and lead me off to indefinite detention — or worse? (...)

What has been happening in this continuation of a seemingly endless “war on terror” — amid widespread public indifference — makes Richard Nixon’s “enemies list” look like a board game. At least the Nixon White House had a modicum of good sense not to flaunt its skirting the law and violating constitutional rights.
It is a safe bet that functionaries at the National Security Council are updating the kill-or-capture list even now, confident that President Obama will sign the Senate version of the bill into law once it gets predictably endorsed by the Republican-controlled House.

Then, what is to prevent NSC “counterterrorist” functionaries from summoning the go-to lawyers still ensconced in the Justice Department and asking them for help in navigating what appear to be deliberate ambiguities in the new bill’s language.

Backed by a John Yoo-style “legal justification,” an order could be issued to “terminate” me while reassuring my neighbors that, yes, just as you suspected, he was a terrorsymp. Or maybe they’ll simply order some troops from the 82nd Airborne at Fort Bragg, where I was stationed a half-century ago, to apprehend me and give me a free one-way ticket to Guantanamo.

After all, how bad could that be? Former Defense Secretary Donald Rumsfeld explained to CNN’s Wolf Blitzer in June 2005 that the detainees at Guantanamo were “living in the tropics. They’re well-fed. They’ve got everything they could possibly want.” And would Rumsfeld lie? (...)

From my erstwhile colleagues at CIA, there has been more mumbo jumbo aimed at disguising what is really afoot. According to press reports, the CIA general counsel has already said, disingenuously: “American citizens are not immune from being treated like an enemy if they take up arms against the United States.”
But one does not need to “take up arms” in order to be labeled a “combatant,” as the government is defining such terms. Awlaki didn’t take up arms; he was said to have provided “material support to terrorism” by his alleged — but unproven — encouragement of terrorist attacks on the United States. (Under the new NDAA, a similar fate could befall someone who advocates resistance to “coalition partners,” like NATO countries or some corrupt governments that are U.S. allies, such as the Karzai regime in Afghanistan or the terror-linked government of Pakistan.)
In the broad strokes of defining American “partners” and al-Qaeda/Taliban “associated forces,” will Israel fall into the first group and Iran, Hamas, and Hezbollah into the second?
Could material support be nothing more than providing financial support for the U.S. boat to Gaza, which challenged the Israeli embargo of Hamas-ruled Gaza? If creative lawyers for this or some future administration get busy, would the new NDAA provide authority for the military to detain such a U.S. citizen under the Law of War and transfer him or her to Guantanamo or elsewhere?
Conflicting legal interpretations of the bill are now more about whether military detentions would be mandatory or the president would still retain some discretion.
In sum, the wording appears to create a parallel military justice system that, theoretically, we are all subject to. All that would be needed is an allegation by someone that we assisted someone who in some way assisted someone else in some way. An actual terrorist act would not be needed — and neither would a trial by one’s peers as guaranteed by the Constitution to determine actual “guilt.”
Should you be tempted to dismiss this as “liberal fear-mongering,” take a look at this item from
The bill would require military custody of a suspect deemed to be a member of Al Qaeda or its affiliates and involved in plotting or committing attacks on the United States. … The legislation also would give the government the authority to have the military hold an individual suspected of terrorism indefinitely, without a trial.
“Since the bill puts military detention authority on steroids and makes it permanent, American citizens and others are at greater risk of being locked away by the military without charge or trial if this bill becomes law,” said Christopher Anders, senior legislative counsel for the American Civil Liberties Union.
A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain (R-Arizona) and Lindsey Graham (R-South Carolina) to claim that the bill’s stringent provisions do apply to U.S. citizens as well as non-citizens.

In addition, the new wording adds “associated forces” (whatever that means) to the previous AUMF’s list of targets. The language of the AUMF of September 2001 was limited to “those nations, organizations, or persons he [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

Burning the Midnight Oil

It is a safe guess that the legal pharisees were burning the midnight oil, dissecting how the draft bill can say, on the one hand, that this or that provision does not apply to American citizens — but, oops, this other provision seems to allow them to be shipped off to Guantanamo, too.

Not being expert enough to do so, I happily leave it to them to parse the language, diagram the sentences, and do surgery on each jot and tittle. There will be a veritable feast for the legal beagles.

What speaks loudest to me is the fact that two key amendments did not pass. Senate Amendment 1125 would have limited the mandatory detention provision to persons captured abroad. And Amendment 1126 would have provided that the authority of the military to detain persons without trial until the end of hostilities would not apply to American citizens. Both amendments were voted down 45 to 55.

Though President Obama has objected to the Senate bill as going too far even by his death-to-Awlaki standard, a more troubling question is what might these new powers mean if, say, another terrorist attack hits the United States or if a more hard-line president comes to power.

Take, for example, Texas Gov. Rick Perry, one of the Republican presidential hopefuls. Before a stump speech in Manchester, N.H., on Tuesday, Perry gave us a hint of what his policies, and maybe even his Cabinet, would look like. (...)

Back in New Hampshire, after Arpaio provided a lackluster introduction, Perry took the stage, offering unctuous thank-yous to Sheriff Joe. Perry then reminded us forcefully that he is a “law and order guy.”
That resonated with me in an unusually personal way — so much so, that I missed some of his other by now notorious remarks, like his appeal for all those 21 or over (sic) to vote for him in the New Hampshire primary and those from 18 to 21 to work hard and look toward the day when they too can vote (sic).

Still, the words “law and order” stuck in my mind. I thought under what law did Perry several months ago call on Attorney General Holder to prosecute me and the other passengers on the Audacity of Hope, the U.S. boat to Gaza, as it challenged Israel’s blockade?

Because Perry had been busy glad-handing folks off to the side when I rose to plead guilty to booing Arpaio, the governor didn’t see who it was. And, as luck would have it, he called on me for the first question of the Q & A:
I’m Ray McGovern, and I thank you for coming here, Governor Perry. My question pertains to a letter that you wrote to Attorney General Eric Holder on the 28th of June of this year, and I quote: “As governor of one of the largest states, I write to encourage you to aggressively prosecute those on the U.S. boat to Gaza, who plan to interfere with Israel’s maritime blockade of Gaza.”
You may not have been aware that, three days previous, the State Department spokeswoman was asked three times whether Israel’s maritime blockade of Gaza was legal and she refused to say the blockade was legal. I was one of those passengers on the U.S. boat to Gaza, and with my co-passengers we were wondering what you, as the governor of Texas, a” law and order” person … under what law did you wish to prosecute my co-passengers and me?
Perry turned his response into a commentary on how much he supports Israel — no matter what. Like all of his rivals for the Republican nomination (except Ron Paul, who generally refuses to play this craven game), Perry is not about to let anyone outdistance him in expressing unqualified support for Israel. And so he began:
“The issue was that … a … I am a very strong supporter of Israel. … I’ve made my point; I must stand with Israel. … I’m going to stand with Israel. … And you’re free to go stand with who you want to, sir, … but I will be standing with Israel.”
“No matter what?” I asked. “No matter what” was his emphatic response that can be heard beneath a crescendo of applause from Perry supporters. To watch the video of this encounter, click here.

How Far Will It Go?

With the new language in the NDAA, it would appear that Gov. Perry and others might soon have all the law they need to stifle acts or words that give support to Hamas, Hezbollah, Iran, or any other perceived threat to Israel, at least after Obama signs the legislation and some smart lawyers get to work on the definition of “associated forces.”

Then, will the 82nd Airborne be sent to fetch me if I continue to write and speak what I believe to be the truth on issues like these?

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