There is a shocking piece of legislation working its way through Congress. A Defense Authorization bill for 2012 allows for military detentions of American citizens on American soil. These can be indefinite detentions, with no trial.
The American Civil Liberties Union statement (more of an alert) on November 23, 2011 deserves special attention:
“The U.S. Senate is considering the unthinkable: changing detention laws to imprison people — including Americans living in the United States itself — indefinitely and without charge.”
“The Defense Authorization bill — a “must-pass” piece of legislation — is headed to the Senate floor with troubling provisions that would give the President — and all future presidents — the authority to indefinitely imprison people, without charge or trial, both abroad and inside the United States.”
“If enacted, sections 1031 and 1032 of the NDAA would:
1) Explicitly authorize the federal government to indefinitely imprison without charge or trial American citizens and others picked up inside and outside the United States;
(2) Mandate military detention of some civilians who would otherwise be outside of military control, including civilians picked up within the United States itself; and
(3) Transfer to the Department of Defense core prosecutorial, investigative, law enforcement, penal, and custodial authority and responsibility now held by the Department of Justice.”
“The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.”
The American Civil Liberties Union (ACLU) is the nation’s oldest organization of its kind, emerging from the American Union Against Militarism, which opposed the US entry into World War I in 1917.
Without endorsing everything the ACLU has done, it is possible to recognize this organization as careful. It is not prone to wild exaggeration.
Fortunately, there is some resistance to the NDAA for 2012 bill, to this Department of Defense power grab, including by Sen. Dianne Feinstein (D-Calif), the chairman of the Intelligence Committee, and Sen. Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee.
In fact, Sen. Feinstein appeared quite alarmed:
“I will stop reading here, but again, I want to emphasize this point. We are talking about the indefinite detention of American citizens without charge or trial. We have not done this at least since World War II when we incarcerated Japanese Americans. This is a very serious thing we are doing. People should understand its impact.”
The White House is not enthusiastic about the present wording of the two controversial sections of the bill.
In a Statement of Administration Policy (November 17, 2011), the administration objected to two main items:
1) that the bill mandates the military detention of covered persons (restraining the Justice Department’s hand) and
2) that the detention provisions can cover American citizens within the United States.
Obviously, if the President is put in the position of having to sign a bill with such a provision (indefinite detention for Americans), it would spark bottomless outrage from both Occupy Wall Street and the Tea Party.
Even mainstream, apolitical Americans would be concerned about such a provision that, on its face, is unconstitutional. Ordinary Americans are already waking up to the specter of tyranny, and the NDAA for 2012 would accelerate that process.
So the administration released this statement in an effort to trim the most offensive sections from the bill:
“Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”
Senators Levin’s response to the administration is troubling on two counts.
First, Sen. Levin’s response suggests that the administration changed its position midway through this process or, possibly, that there is a split between the White House on the one hand and the Pentagon or CIA on the other:
Sen. Levin’s states that it was the administration all along that assisted with the wording:
“Section 1031 was written by Administration officials for the purpose of codifying existing authority.”
Then Sen. Levin complains that:
“The Administration itself asked that we delete language in section 1031 that would have excluded the detention of U.S. citizens or lawful resident aliens based on conduct taking place within the United States.”
Senator Levin insists that there is nothing in those sections that breaks with established law, and that the committee accepted the administration’s proposed changes to retain the civilian – rather than the military – option for detainment.
This is how Sen. Levin tried to put at ease the concerns:
“Nothing is automatic. The administration would have the discretion to waive military detention and hold a detainee in civilian custody if it decided to do so.”
Sen. Levin then proceeds to misinterpret the Supreme Court case that he himself cited: Hamdi v. Rumsfeld (2004). As Sen. Levin claims:
“The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.”
But the circumstances in Sen. Levin’s bill are not “limited” at all, since they involve indefinite detention without trial.
Besides, the Supreme Court actually decided – in the Hamdi case in fact – that detainees who are U.S. citizens must have the ability to challenge their enemy combatant status before an impartial judge. This precludes indefinite detention without a trial.
(Hamdi v. Rumsfeld had addressed the case of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an “illegal enemy combatant.”)
As Justice Sandra Day O’Connor wrote in the opinion:
“… it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.”
Eight of the nine justices of the Court agreed that the government does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.
Clearly, this upcoming defense bill – especially Sections 1031 and 1032 – is plagued by confusion. Some of this confusion appears to be deliberate.
The ACLU is supporting the Udall Amendment advanced by Sen. Mark Udall (D-Colo.). The ACLU claims that it will delete the harmful provisions and “make sure that the bill matches up with American values.”
It is time, however, to raise a more fundamental question about the NDAA for 2012 and Sections 1031 and 1032.
What sinister forces are behind the crafting of this legislation, behind closed doors? Most likely, officials in the defense and intelligence communities penned the legislation, then used Senators Carl Levin and John McCain to advance it.
Sen. Carl Levin makes periodic sense, but he has spent much of his 32 years in the Senate helping to bloat the military-industrial and police-state apparatus. Meatime, across his tenure, the economy of his home state Michigan has imploded.
And Se. Levin appears to take seriously the latest absurd accusation: that there was an Iranian-Zeta plot to assassinate the Saudi Ambassador in a restaurant. This plot bears all the hallmarks of previous unlawful entrapment cases. For more details on recent unlawful entrapment: http://multipolarfuture.com/?p=462
Sen. John McCain also makes periodic sense, but he has become a knee-jerk neo-con, unable to find a war (or a long-term occupation) that he cannot support.
Sen. John McCain would do well to remove his name from such a draconian bill, lest he add more fuel to the rumor that, as a prisoner of war in North Vietnam, he was transformed into some kind of Manchurian candidate with a time-release program to destroy American democracy from within.
As many Americans know, for over a decade there have been dozens of pieces of legislation and executive orders that have chipped away at the US Constitution, specifically at its Bill of Rights.
The “war on terror” was originally to be waged against foreigners in far-away lands, but Rep. Ron Paul was right, the anti-terror infrastructure is swinging around to be used against American citizens.
This was the design all along.
The intention was always to immobilize the American public with a police-state control grid, now backed by the regular military, so that the process of economic extraction and political subjection could be completed.
The NDAA for 2012 represents a significant step, on the part of the government, towards a “final takedown.”
The bill’s provision for the indefinite detention of American citizens, without charge or trial, represents nothing short of an declaration of war by the federal government on the American people.
Hopefully, more sensible Senators and Representatives will squash this diabolical legislation.