The National Defense Authorization Act (NDAA) sanctioned giving federal lands belonging to indigenous Americans to Resolution Copper, a subsidiary of the British Australian multinational, Rio Tinto.
The United States Congress is about to give 2,400 acres of national forest in Arizona that is considered ancestral land by Apache Native Americans to a mining company.
The House and Senate Armed Services Committees quietly amended a provision to a national defense act that would sanction the handover of a large section of the Tonto National Forest to Resolution Copper, a subsidiary of the British-Australian multinational mining company Rio Tinto Group.
Despite a last minute attempt to remove the land provision from the measure, the amendment moved through the U.S. House Rules Committee on Wednesday night.
The amendment is part of a measure attached to annual legislation governing allocations of funds to the U.S. Defense Department, known as the National Defense Authorization Act (NDAA). This determines how funds are allocated to the US Defense Department.
The “Carl Levin and Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015” – named after the soon-to-retires chairmen of the Senate and House Armed Services panels – includes the mandate to give away Apache burial, medicinal, and ritual grounds currently within the perimeters of the national forest to the mining company.
Section 3003 of the NDAA reads, “Subject to the provisions of this section, if Resolution Copper offers to convey to the United States all right, title, and interest of Resolution Copper in and to the non-Federal land, the Secretary is authorized and directed to convey to Resolution Copper, all right, title, and interest of the United States in and to the Federal land.”
However, the proposal brushes over the fact that the land to be conceded to the mining company includes cherished territory Apaches have used for centuries to gather medicinal plants and acorns. It is close to a location known as Apache Leap, a summit that tribal members jumped from in the late 19th century to save themselves from marauding settlers trying to kill them.
Terry Rambler, chair of the San Carlos Apache Tribe, told the The Huffington Post that while heartbroken, he was not all that surprised by the news.
“Of all people, Apaches and Indians should understand, because we’ve gone through this so many times in our history,” he said. “The first thing I thought about was not really today, but 50 years from now, probably after my time, if this land exchange bill goes through, the effects that my children and children’s children will be dealing with.”
The 2015 NDAA provides for other land grabs, including one that would allow logging on 70,000 acres of Tongass National Forest in Alaska, and another that would hand over 1,600 acres of one of the most polluted nuclear sites in the country, located in Washington State, to industrial development, a plan that has likewise sparked protest within the Yakama Nation. In October, Tribal Chairman JoDe Goudy wrote to the Committee on Armed Services urging them to stop the amendment.
In another controversial aspect of the amendment, the new NDAA also includes provisions related to allowing domestic “indefinite detention.” In other words, it “paves the way for Guantanamo-style indefinite detention being brought to the United States itself,” the American Civil Liberties Union concluded in its Blog of Rights.
Obama fails to close Guantanamo prison; human rights violations continue January 9, 2013
Human rights groups are denouncing President Barack Obama’s failure to veto a defense bill that will make it far more difficult for him to fulfill his four-year-old pledge to close the Guantanamo detention facility this year.
Obama had threatened to veto the 2013National Defense Authorization Act (NDAA) precisely because it renewed, among other things, Congressional restrictions which he said were intended to “foreclose” his ability to shut down the notorious prison, which has been used for the past 11 years to detain suspected foreign terrorists.
But, for the second year in a row, he failed to follow through on his threat and instead signed the underlying bill, which was passed by both houses of Congress last month and authorizes the Pentagon to spend $633 billion on its operations in 2013.
“President Obama has utterly failed the first test of his second term, even before Inauguration Day,” said Anthony Romero, executive director of the American Civil Liberties Union (ACLU). “He has jeopardised 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 another year,” Romero added.
“The administration blames Congress for making it harder to close Guantanamo, yet for a second year, President Obama has signed damaging congressional restrictions into law,” noted Andrea Prasow, senior counter-terrorism counsel at Human Rights Watch (HRW). “The burden is on Obama to show he is serious about closing the prison.”
Obama’s signing of the law comes amid a growing debate – both within and outside the administration – about when and how to end the so-called “Global War on Terror” – especially its most controversial components – that Obama’s predecessor, George W Bush, initiated shortly after the al-Qaeda attacks on Manhattan’s Twin Towers and the Pentagon on Sepember 11, 2001.
A ‘never ending’ conflict
Last month, the Pentagon’s general counsel, Jeh Johnson, addressed precisely that topic in a speech to Britain’s Oxford Union, asking, “Now that the efforts by the US. military against al-Qaeda are in their 12th year, we must also ask ourselves, how will this conflict end?”
While he didn’t offer any specific answers, he indicated that a “tipping point” could be reached when Washington concluded that the group and its affiliates were rendered incapable of launching “strategic attacks” against the US
On taking office four years ago, Obama ordered an end to certain tactics, notably what the Bush administration referred to as “enhanced interrogation techniques” that rights groups called “torture”, and “extraordinary rendition” to third countries known to use torture. He has since relied to a much greater extent on drone strikes against “high-value” suspected terrorists from Afghanistan and Pakistan to Yemen and Somalia.
Some former Bush officials have raised the question whether Obama’s use of targeted killings – which Bush also used but not nearly as frequently – was morally or legally more justifiable than their use of “enhanced interrogation”. Some have even suggested that the administration has preferred killing suspects to capturing them, especially if their capture would require it to send more prisoners to Guantanamo, something Obama pledged not to do.
The administration has sought to justify that tactic – which a growing number of critics consider counter-productive at best, and illegal under international law if carried out far from the battlefield – in general terms but has shied away from spelling out the specific circumstances under which it is deployed.
Drone strikes are believed to have killed more than 1,500 people in Pakistan and more than 400 in Yemen since Obama took office, according to the London-based Bureau of Investigative Journalism, which claims that a not-insignificant proportion of the deaths have included civilians.
The administration is reportedly working to tighten rules regarding the use of drone strikes, particularly by the Central Intelligence Agency (CIA), which has enjoyed greater freedom in deciding when to attack suspects in Pakistan, Yemen, and Somalia than the U.S. military has had in Afghanistan.
Particularly controversial was the targeted killing of a US citizen and alleged al-Qaeda leader, Anwar al-Awlaki, in Yemen in 2011.
A federal judge in New York ruled Wednesday that she could not require the Justice Department to disclose an internal memorandum that provided the legal justification for that attack, but noted that such actions appeared on their face" to be “incompatible with our Constitution and laws”.
The ACLU, which brought the lawsuit under the Freedom of Information Act, denounced the ruling, insisting that “the public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are from any battlefield and have never been charged with a crime.”
Where the detainees will end up?
On the very first day of his presidency four years ago, Obama issued an executive order directing the closing of Guantanamo Bay, which he called a “sad chapter in American history”, within one year.
At the time, he ordered a review of the cases of the approximately 250 detainees who were still there – down from a high of around 800 shortly after it opened in January 2002 – to determine whether they could be prosecuted in civilian courts on US soil or released.
In 2010, an administration task force recommended repatriating 126 detainees to their homelands or a third country, prosecuting 36 others in federal court or before military commissions (which have nonetheless been harshly criticised by human-rights groups for lack of due-process guarantees), and holding 48 others indefinitely pending the end of hostilities.
Some were indeed repatriated; 166 detainees remain at Guantanamo today.
But the administration’s plan encountered heavy resistance in Congress, particularly from lawmakers who strongly opposed the transfer of any suspected terrorists to detention facilities or prisons in their jurisdictions or their trial before civilian courts.
By 2011, Congress attached amendments to critical defence bills restricting Obama’s ability to repatriate detainees and banning their transfer to the US mainland for any purpose, despite the fact that the yearly cost of holding a prisoner in a maximum-security US-based facility would be a fraction of the estimated $800,000 it costs to hold a detainee at Guantanamo.
Obama has taken the position that these restrictions encroach on his powers as commander-in-chief, but his signing of this most recent NDAA marks the second time that he has backed down from a veto threat.
“It’s not encouraging that the president continues to be willing to tie his own hands when it comes to closing Guantanamo,” said Dixon Osborn of Human Rights First. “The injustice of Guantanamo continues to serve as a stain on American global leadership on human rights.”
The NDAA also imposes curbs on the administration’s ability to transfer or repatriate some 50 non-Afghan citizens who are currently being held by US forces in Parwan prison at Bagram Air Base in Afghanistan.
January 1: Obama makes a deal with Republicans on the Fiscal Cliff. The Bush Era tax cuts is reinstated, contradicting his campaign promise to make sure it ends. The Social Security payroll tax is allowed to expire costing the average American family $820 more on taxes. LGBTQ and AIDS/HIV programs will be allowed to expire in two months causing approx. 12,000 positive folks to be put on waiting lists for drug treatment. The proposed cuts could also interfere with the investigation and prosecution of hate crimes against LGBT people and hurt LGBT employment discrimination claims, limit the ability of the federal government to address the high rate of homelessness among LGBT youth and reduce funds for programming directed at LGBT health.
January 2: Obama orders multiple drone strikes in North and South Waziristan killing at least 13 people, that number is expected to rise. The drones attacked a house killing 4 people. Three people were killed and several others injured in a drone attack in the Mubarak Shahi village in North Waziristan tribal region’s Mir Ali Tehsil.The US drone targeted a vehicle with two missiles, and then fired another two missiles when rescuers gathered at the site to carry the bodies and the injured.
Today marks the [72nd] anniversary of FDR signing executive order 9066, which authorized the “indefinite detention” of nearly 150,000 people on American soil.
The order authorized the Secretary of War and the U.S. Army to create military zones “from which any or all persons may be excluded.” The order left who might be excluded to the military’s discretion.
When President Franklin D. Roosevelt inked his name to EO9066 on Feb. 19, 1942, it opened the door for the roundup of some 120,000 Japanese-Americans and Japanese citizens living along the west coast of the U.S. and their imprisonment in concentration camps. In addition, between 1,200 and 1,800 people of Japanese descent watched the war from behind barbed wire fences in Hawaii. Of those interned, 62 percent were U.S. citizens. The U.S. government also caged around 11,000 Americans of German ancestry and some 3,000 Italian-Americans.
Unfortunately, we haven’t learned as much as we should have in the last 72 years, as the passage of the indefinite detention provisions in 2011’s NDAA so clearly shows.
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.”
BREAKING: New Hampshire House Committee approves anti-NDAA bill, unanimously.
CONCORD, N.H., January 23, 2014 – Today, a bipartisan state house committee in New Hampshire voted unanimously in support of a bill which deems federal indefinite detention powers unconstitutional and bans “any activity that aids” the federal government in carrying out such powers.
Introduced by Rep. Tim O’Flaherty (D- Hillsborough), the bill quickly garnered co-sponsorship from two republicans and two democrats. Tenth Amendment Center communications director Mike Maharrey praised the bipartisan action. “Some things are so bad that people know it’s time to drop party affiliations and work together. Indefinite detention is really nothing more than kidnapping sanction by law, and the resistance to it from both parties in the state is refreshing news,” he said.
No doubt Texas’ desire to break free is a source of amusement inside a White House that has mastered the art of belittling the opinions of its challengers, but there is one not-so-small problem here: Texas could pull it off.
–Resources. Texas currently sits on one-quarter of the nation’s oil reserves and one-third of the nation’s natural gas reserves. Even more, fully 95 percent of the country receives its oil and gas courtesy of pipelines that originate within Texas. This is what one might call leverage.
–The Texas Economy. This is well documented but worth repeating. In the last decade, even with the Great Recession, Texas has expanded by one million jobs. One million. That’s more than every other state … combined. Because of its friendly business climate, Texas is home to more Fortune 500 companies than anywhere else. If Texas were its own country, it would have the tenth-highest GDP in the world. Canada would be number eleven. Or think about it this way: For every dollar Texas taxpayers send to Washington, they currently get only about 80 cents back. Theoretically, they could transfer those funds to the state’s coffers and still give every Texan a 20 percent tax cut.
–Utilities. Texas is the only state with its own power grid. Developed over the course of the last 100 years, the Texas grid covers the majority of the state and is fully state controlled. Translation: Texans could rest assured that the federal government doesn’t have the power — literally — to turn off their lights.
–Defense. While no match for Uncle Sam’s firepower, Texas does have a significant defense presence, namely in the Texas State Guard (which answers only to the governor), the Texas National Guard, the Air Guard and the legendary Texas Rangers. Texas is also home to two of the nation’s largest military bases — Fort Hood and Fort Bliss — and being able to control those two installations is nothing to sniff at. But let’s not forget the firepower of the citizenry itself. There’s a reason burglars don’t waste their time in Texas.
–History. Texas has done this before. Twice, actually. First in 1836, when it seceded from Mexico and became an independent country. Second in 1861, when it joined the Confederacy. And while the South did lose the Civil War, it didn’t lose it in Texas. In fact, by the end of 1864, the North didn’t have one square foot of Texas soil under its control despite many attempts. Even a full month after Robert E. Lee surrendered at the Appomattox Court House, Texas was still fighting. Texans love their state and they love a fight. That is a lethal combination.
Still, all of this leads us back to a legal question: Can they do it? Texas lore claims that the permission to secede is woven into the state’s founding documents. Well, yes and no. The Texas Annexation Agreement of 1845 does say that the state has the right to split into as many as five separate states should it so choose — wouldn’t that make Harry Reid’s head spin? — and the Texas Constitution does say that “the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States,” … but there is no get-out-of-jail-free card.
The counterargument, of course, is that Texas doesn’t need to look to its own history. It can look to America’s. After all, didn’t America secede, as it were, from Great Britain? And doesn’t the first line of our own Declaration of Independence defend a people’s God-given right to assume their own “separate and equal station” under the law?
Chris Hedges: The Post-Constitutional Era May 5, 2014
The U.S. Supreme Court decision to refuse to hear our case concerning Section 1021(b)(2) of the National Defense Authorization Act (NDAA), which permits the military to seize U.S. citizens and hold them indefinitely in military detention centers without due process, means that this provision will continue to be law. It means the nation has entered a post-constitutional era. It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power—one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed—a poll by OpenCongress.com showed that this provision had a 98 percent disapproval rating—is a cruel joke. And it means that if we do not rapidly build militant mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty.
“In declining to hear the case Hedges v. Obama and declining to review the NDAA, the Supreme Court has turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America,” said attorney Carl Mayer, who along with Bruce Afran devoted countless unpaid hours to the suit. “This is a major blow to civil liberties. It gives the green light to the military to detain people without trial or counsel in military installations, including secret installations abroad. There is little left of judicial review of presidential action during wartime.”
Afran, Mayer and I brought the case to the U.S. Southern District Court of New York in January 2012. I was later joined by co-plaintiffs Noam Chomsky, Daniel Ellsberg, journalist Alexa O’Brien, RevolutionTruth founder Tangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist Kai Wargalla.
Later in 2012 U.S. District Judge Katherine B. Forrest declared Section 1021(b)(2) unconstitutional. The Obama administration not only appealed—we expected it to appeal—but demanded that the law be immediately put back into effect until the appeal was heard. Forrest, displaying the same judicial courage she showed with her ruling, refused to do this.
The government swiftly went to the U.S. Court of Appeals for the 2nd Circuit. It asked, in the name of national security, that the court stay the district court’s injunction until the government’s appeal could be heard. The 2nd Circuit agreed. The law went back on the books. My lawyers and I surmised that this was because the administration was already using the law to detain U.S. citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia and Yemen. The administration would have been in contempt of court if Forrest’s ruling was allowed to stand while the federal authorities detained U.S. citizens under the statute. Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.
The 2nd Circuit overturned Forrest’s ruling last July in a decision that did not force it to rule on the actual constitutionality of Section 1021(b)(2). It cited the Supreme Court ruling in Clapper v. Amnesty International, another case in which I was one of the plaintiffs, to say that I had no standing, or right, to bring the NDAA case to court. Clapper v. Amnesty International challenged the secret wiretapping of U.S. citizens under the FISA Amendments Act of 2008. The Supreme Court had ruled in Clapper that our concern about government surveillance was “speculation.” It said we were required to prove to the court that the FISA Act would be used to monitor those we interviewed. The court knew, of course, that the government does not disclose whom it is monitoring. It knew we could never offer proof. The leaks by Edward Snowden, which came out after the Supreme Court ruling, showed that the government was monitoring us all, along with those we interviewed. The 2nd Circuit used the spurious Supreme Court ruling to make its own spurious ruling. It said that because we could not show that the indefinite-detention law was about to be used against us, just as we could not prove government monitoring of our communications, we could not challenge the law. It was a dirty game of judicial avoidance on two egregious violations of the Constitution.
In refusing to hear our lawsuit the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. Now, a U.S. citizen charged by the government with “substantially supporting” al-Qaida, the Taliban or those in the nebulous category of “associated forces”—some of the language of Section 1021(b)(2)—is lawfully subject to extraordinary rendition on U.S. soil. And those seized and placed in military jails can be kept there until “the end of hostilities.”
Judge Forrest, in her 112-page ruling against the section, noted that under this provision of the NDAA whole categories of Americans could be subject to seizure by the military. These might include Muslims, activists, Black Bloc members and any other Americans labeled as domestic terrorists by the state. Forrest wrote that Section 1021(b)(2) echoed the 1944 Supreme Court ruling in Korematsu v. United States, which supported the government’s use of the military to detain 110,00 Japanese-Americans in internment camps without due process during World War II.
Full article Pictured: Activist Lauren DiGioia is arrested Jan. 3, 2012, during a demonstration in New York City’s Grand Central Station held to call attention to the National Defense Authorization Act, signed by President Barack Obama on the previous New Year’s Eve. (AP/Mary Altaffer)
Top senators thought you wouldn’t notice. Behind closed doors, they wrote up new indefinite detention and Guantánamo provisions in the annual defense policy bill, and then waited 11 days to quietly file the bill.
But we now have the bill, and everyone can read it. And everyone should understand what is in this new National Defense Authorization Act (NDAA) before the full Senate makes a big mistake and paves the way for Guantánamo-style indefinite detention being brought to the United States itself.
The new Senate NDAA:
Brings Indefinite Detention to the U.S. Itself: The bill now says that detainees may be brought to the United States for “detention pursuant to the Authorization for Use of Military Force” (AUMF). In plain English, that means the policy of indefinite detention by the military, without charge or trial, could be carried out here at home. Right now, the number of people in the U.S. in military indefinite detention is zero. If the bill is enacted, that number could immediately jump to 100 or more.
Bolsters Claims of NDAA and AUMF Indefinite Detention Authority: The AUMF is the basis for the indefinite detention authority included in the NDAA that Congress passed nearly three years ago. Indefinite detention is wrong today and certainly cannot be sustained past the end of U.S. combat in the Afghan war. But passing a new Senate NDAA that relies on detention authority based on the AUMF, just as the U.S. combat role in the war is winding down, could be used by the government to bolster its claim that indefinite detention can just keep on going. Even when any actual U.S. combat is over.
Requires Report on Even More NDAA and AUMF Indefinite Detention Authority: As if the government didn’t already have enough claims of indefinite detention authority, the Senate NDAA asks the administration to let Congress know what more indefinite detention authority it wants.
Tries to Strip Federal Courts of Ability to Decide Challenges to Harmful Conditions: In a stunning provision, the Senate NDAA tries to strip federal courts of their ability to “hear or consider” any challenge related to harmful treatment or conditions by detainees brought to the United States. This provision tries to gut our system of checks and balances by cutting out the courts.
Violates Supreme Court Decision by Stripping Habeas Rights from Detainees Left at Guantánamo: In a classic example of why it is never a good idea for a committee to legislate behind closed doors, the Senate NDAA includes language inadvertently stripping habeas rights from any Guantánamo detainee who is not moved to the United States. Habeas is the very fundamental protection of being able to have a judge decide whether it is legal or illegal to hold someone in prison. While this is almost certainly the product of sloppy drafting, the result squarely contradicts the Supreme Court’s decision in Boumediene v. Bush, in which the Court said Guantanamo detainees have a constitutional right to habeas.
Blocks Most Cleared Detainees from Going Home: The Senate NDAA would block the transfer home of the vast majority of cleared detainees by imposing a blanket ban on transfers to Yemen, instead of continuing to allow the secretary of defense to make decisions on an individual basis. That would mean dozens of detainees cleared for transfer would remain trapped in limbo.
There is a right way and a wrong way to close Guantánamo. Charging and trying in court anyone who committed a crime – and sending anyone who isn’t charged with a crime back home or to another country – is the right way to close Guantánamo. Simply moving all of the bad Guantánamo policies to the U.S. itself is the wrong way.
The Senate NDAA gets it very wrong. We urge all senators to say “NO” to these provisions.
I love all the white Americans crying over Charlie Hebdo because it was an attack on their “freedom of speech” while they were dead silent about the NDAA & the Patriot Act, which DIRECTLY violated their freedoms.
Chris Hedges: The NDAA & the death of the democratic state February 11, 2013
On Wednesday a few hundred activists crowded into the courtroom of the Second Circuit, the spillover room with its faulty audio feed and dearth of chairs, and Foley Square outside the Thurgood Marshall U.S. Courthouse in Manhattan where many huddled in the cold. The fate of the nation, we understood, could be decided by the three judges who will rule on our lawsuit against President Barack Obama for signing into law Section 1021(b)(2) of the National Defense Authorization Act (NDAA).
Section 1021(b)(2) was declared invalid in September after our first trial, in the Southern District Court of New York. The Obama administration appealed the Southern District Court ruling. The appeal was heard Wednesday in the Second Circuit Court with Judges Raymond J. Lohier, Lewis A. Kaplan and Amalya L. Kearse presiding. The judges might not make a decision until the spring when the Supreme Court rules in Clapper v. Amnesty International USA, another case in which I am a plaintiff. The Supreme Court case challenges the government’s use of electronic surveillance. If we are successful in the Clapper case, it will strengthen all the plaintiffs’ standing in Hedges v. Obama. The Supreme Court, if it rules against the government, will affirm that we as plaintiffs have a reasonable fear of being detained.
If we lose in Hedges v. Obama—and it seems certain that no matter the outcome of the appeal this case will reach the Supreme Court—electoral politics and our rights as citizens will be as empty as those of Nero’s Rome. If we lose, the power of the military to detain citizens, strip them of due process and hold them indefinitely in military prisons will become a terrifying reality. Democrat or Republican. Occupy activist or libertarian. Socialist or tea party stalwart. It does not matter. This is not a partisan fight. Once the state seizes this unchecked power, it will inevitably create a secret, lawless world of indiscriminate violence, terror and gulags. I lived under several military dictatorships during the two decades I was a foreign correspondent. I know the beast.
“The stakes are very high,” said attorney Carl Mayer, who with attorney Bruce Afran brought our case to trial, in addressing a Culture Projectaudience in Manhattan on Wednesday after the hearing. “What our case comes down to is: Are we going to have a civil justice system in the United States or a military justice system? The civil justice system is something that is ingrained in the Constitution. It was always very important in combating tyranny and building a democratic society. What the NDAA is trying to impose is a system of military justice that allows the military to police the streets of America to detain U.S. citizens, to detain residents in the United States in military prisons. Probably the most frightening aspect of the NDAA is that it allows for detention until ‘the end of hostilities.’ ” [To see videos of Mayer, Afran, Hedges and other participating in the Culture Project panel discussion, click here.]
Five thousand years of human civilization has left behind innumerable ruins to remind us that the grand structures and complex societies we build, and foolishly venerate as immortal, crumble into dust. It is the descent that matters now. If the corporate state is handed the tools, as under Section 1021(b)(2) of the NDAA, to use deadly force and military power to criminalize dissent, then our decline will be one of repression, blood and suffering. No one, not least our corporate overlords, believes that our material conditions will improve with the impending collapse of globalization, the steady deterioration of the global economy, the decline of natural resources and the looming catastrophes of climate change.
But the global corporatists—who have created a new species of totalitarianism—demand, during our decay, total power to extract the last vestiges of profit from a degraded ecosystem and disempowered citizenry. The looming dystopia is visible in the skies of blighted postindustrial cities such as Flint, Mich., where drones circle like mechanical vultures. And in an era where the executive branch can draw up secret kill lists that include U.S. citizens, it would be naive to believe these domestic drones will remain unarmed.
Robert M. Loeb, the lead attorney for the government in Wednesday’s proceedings, took a tack very different from that of the government in the Southern District Court of New York before Judge Katherine B. Forrest. Forrest repeatedly asked the government attorneys if they could guarantee that the other plaintiffs and I would not be subject to detention under Section 1021(b)(2). The government attorneys in the first trial granted no such immunity. The government also claimed in the first trial that under the 2001 Authorization to Use Military Force Act (AUMF), it already had the power to detain U.S. citizens. Section 1021(b)(2), the attorneys said, did not constitute a significant change in government power. Judge Forrest in September rejected the government’s arguments and ruled Section 1021(b)(2) invalid.
The government, however, argued Wednesday that as “independent journalists” we were exempt from the law and had no cause for concern. Loeb stated that if journalists used journalism as a cover to aid the enemy, they would be seized and treated as enemy combatants. But he assured the court that I would be untouched by the new law as long as “Mr. Hedges did not start driving black vans for people we don’t like.”
Loeb did not explain to the court who defines an “independent journalist.” I have interviewed members of al-Qaida as well as 16 other individuals or members of groups on the State Department’s terrorism list. When I convey these viewpoints, deeply hostile to the United States, am I considered by the government to be “independent”? Could I be seen by the security and surveillance state, because I challenge the official narrative, as a collaborator with the enemy? And although I do not drive black vans for people Loeb does not like, I have spent days, part of the time in vehicles, with armed units that are hostile to the United States. These include Hamas in Gaza and the Kurdistan Workers Party (PKK) in southeastern Turkey.
I traveled frequently with armed members of the Farabundo Marti National Liberation Front in El Salvador and the Sandinista army in Nicaragua during the five years I spent in Central America. Senior officials in the Reagan administration regularly denounced many of us in the press as fifth columnists and collaborators with terrorists. These officials did not view us as “independent.” They viewed us as propagandists for the enemy. Section 1021(b)(2) turns this linguistic condemnation into legal condemnation.
Alexa O’Brien, another plaintiff and a co-founder of the US Day of Rage, learned after WikiLeaks released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, that Stratfor operatives were trying to link her and her organization to Islamic radicals, including al-Qaida, and sympathetic websites as well as jihadist ideology. If that link were made, she and those in her organization would not be immune from detention.
Afran said at the Culture Project discussion that he once gave a donation at a fundraising dinner to the Ancient Order of Hibernians, an Irish Catholic organization. A few months later, to his surprise, he received a note of thanks from Sinn Féin. “I didn’t expect to be giving money to a group that maintains a paramilitary terrorist organization, as some people say,” Afran said. “This is the danger. You can easily find yourself in a setting that the government deems worthy of incarceration. This is why people cease to speak out.”