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Indefinite Surveillance: Say Hello to the National Defense Authorization Act of 2014

 

June 18, 2013
by Stephen Benavides

Passed in 1978, the Foreign Intelligence Surveillance Act (FISA) set the groundwork for surveillance, collection, and analysis of intelligence gathered from foreign powers and agents of foreign powers, up to and including any individual residing within the U.S., who were suspected of involvement in potential terrorist activity.  On October 26, 2001, a little over a month after 9/11, President George W. Bush signed the USA Patriot Act into law. Two provisions, Sec. 206, permitting government to obtain secret court orders allowing roving wiretaps without requiring identification of the person, organization, or facility to be surveyed, and Sec. 215 authorizing government to access and obtain “any tangible thing” relevant to a terrorist investigation, transformed foreign intelligence into domestic intelligence.

NDAA 2014 builds on the powers granted by both the Patriot Act and FISA by allowing unrestricted analysis and research of captured records pertaining to any organization or individual “now or once hostile to the United States”.  Under the Patriot Act, the ability to obtain “any tangible thing” eliminated any expectation of privacy.  Under NDAA 2014 Sec. 1061(g)(1), an overly vague definition of captured records enhances government power and guarantees indefinite surveillance. 

On May 22, 2013 the Subcommittee on Intelligence, Emerging Threats and Capabilities, one of several Armed Services Committees, met to discuss the National Defense Authorization Act(NDAA) for Fiscal Year 2014.  The main subject of the hearing was Sec. 1061, otherwise known as Enhancement of Capacity of the United States Government to Analyze Captured Records. This enhancement provision of   NDAA 2014 would effectively create a new intelligence agency, one with the authority to analyze information gained under the Patriot Act, FISA, and known spying programs such as PRISM.

Sec. 1061(a) authorizes the Secretary of Defense to “establish a center to be known as the ‘Conflict Records Research Center’” (Center). The main purpose of the center, according to the bill text, is to create a “digital research database,” one with the capability to “translate” and facilitate research on “records captured from countries, organizations and individuals, now or once hostile to the United States.” The authorization also says the Center will conduct research and analysis to “increase the understanding of factors related to international relations, counterterrorism and conventional and unconventional warfare, and ultimately, enhance national security.”

In order to make the Center run, and to accomplish such an incredibly broad scope of “research and analysis,” the Secretary of Defense needs the Director of National Intelligence (DNI) to cooperate in coordinating “information exchanges important to the leadership of the United States Government”.   That coordination would require participation of all 16 member agencies and departments of the U.S. Intelligence Community.  This would leave James Clapper, the man accused of lying to Congress about the National Security Agency’s domestic spying program known as PRISM, in de facto direction of another federal surveillance and data analysis agency.  And while the Center would be officially directed and overseen by the Secretary of Defense, without unfettered access to secret and top secret information, the Center would be completely ineffective.  These information exchanges would most likely include data and records generated by the mass surveillance of everyday people under PRISM, as well as surveillance of those identified as “potential terrorists” or “high value targets” by any one of those 16 intelligence agencies now in operation.

The proposed Center’s information exchanges rely on captured government records.  Under the NDAA 2014, Sec. 1061(g)(1), a captured record is defined 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.”  But considering that the 2001 Authorization to Use Military Force (AUMF) allows the “War on Terror” to exist in a perpetual and permanent state of combat operations, and that the American public is already existing under an expansive surveillance state, any record may qualify as a “captured record.” Thus, any captured document, audio file, video file, or other material could potentially be submitted to this new intelligence agency for research and analysis, all in the name of national security and counterterrorism, as deemed appropriate by a swelling government surveillance class.

The NDAA 2014 enhancement provision extends and consolidates the government’s authority to further gather and analyze records and data captured during any national security or terrorist related investigation, not just combat operations. But it does so without creating any explicit restriction from violating an individual’s right to privacy, from being subjected to unwarranted searches and seizures, or due process of individuals guaranteed by the Constitution. That’s eerily similar to the NDAA 2013 Sec. 1021 that codified the indefinite military detention of American citizens without requiring they be charged with a specific crime, or given a trial.

Under NDAA 2013, Sec. 1021 allowed the military detention of civilians without a writ of habeas corpus, when a person “was 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Under NDAA 2014, anyone is now subject to surveillance, not based on support of al-Qaeda or its associated forces, but based merely upon whether or not an individual is, or once was hostile to the U.S.  The question of what constitutes “hostility”, is left completely unanswered.

The new enhancement provision, as well as the previous NDAA’s indefinite detention mandate, goes to show how far the legislation has strayed from its stated purpose. According to House Armed Services Committee Chairman Buck McKeon (R-CA), the NDAA “authorizes funding for military activities of the Department of Defense, for military construction, for defense activities of the Department of Energy, to prescribe military personnel strengths, and for other purposes.”

Instead, the NDAA has become the vehicle for the Executive Branch and Department of Defense to bypass Congress, and legislate away any perceived right, liberty, or privilege that conflicts with our current state of permanent war and indefinite surveillance.

In 2012, in an attempt to stop that “indefinite detention” provision, Sen. Dianne Feinstein (D-CA) introduced an amendment that would have prohibited the government from detaining citizens indefinitely using military force.  That proposed law, otherwise known as the “Feinstein Amendment” easily passed the Senate floor, but was later removed by Senate Armed Services Committee Chairman Carl Levin (D-MI).  After removal of the only specific language that would guarantee the US Government would be prohibited from interpreting the act illegally; President Obama, also a Democrat, signed NDAA 2013 into law.

If passed in its current state, NDAA 2014 would authorize approximately $552 billion in total defense spending, with $86 billion going directly to war spending.  This amount exceeds what is allowed under the automatic austerity measures that went into effect as of March 1, 2013.  According to a report released in April 2013 by the Center for Strategic and Budgetary Assessments, “[i]f personnel, operation and maintenance costs keep rising, they may consume the “entire defense budget” by 2024, leaving no funding for weapons procurement, military construction or family housing.”  Any program created by the Enhancement Provision of NDAA 2014 would necessarily burden an already overwhelmed working class, who are most affected by austerity.

While the National Security Agency swears that no citizen was spied on under PRISM, the very fact that cell phone metadata and online activity was gathered from millions of individuals guarantees that information was taken illegally from innocent people .  We’re told that the government is attempting to minimize the amount of information captured from Americans, and that all of that information is being kept in specialized and restricted servers in order to protect our constitutional rights.  But that’s difficult to believe when the Department of Justice is currently fighting the release of a secret FISA Court opinion that details unconstitutional government surveillance.

If indefinite detention became the primary reason for opposing NDAA 2013, then the enhance provision authorizing unlimited indefinite surveillance, may become the same issue for NDAA 2014.  If passed in its current state, NDAA 2014 will further guarantee that people exist not only under indefinite detention and permanent war, but also under indefinite surveillance by its government.

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Texas Bills Would Nullify NDAA’s Indefinite Detention, TSA’s Intrusive Screening

Written by  Raven Clabough

State lawmakers in Texas are fighting to reassert their citizens’ Fourth, Sixth, and Eighth Amendment rights. Republican legislators have submitted two bills, one to remove the indefinite detention provisions in the National Defense Authorization Act (NDAA), and the other to stop the intrusive screening procedures of the Transportation Security Administration (TSA).

HB149, the Texas Liberty Preservation Act filed by state Rep. Lyle Larson, targets the most controversial provisions of the 2012 National Defense Authorization Act. The online Huffington Post reports,

HB 149 specifically calls out Section 1021 and 1022 of the NDAA, which were recently subjects of a federal lawsuit filed by plaintiffs concerned that the language within the passages could be used to indefinitely detain U.S. citizens.

In October, a federal appeals court rejected the notion that the indefinite detention provisions found within the NDAA pose a reasonable threat to American citizens and blocked an injunction issued by another judge in May who had determined that the NDAA did not “pass constitutional muster.”

According to the appeals judges, “the public interest” outweighed the concerns raised by the plaintiffs. They determined that “the statute does not affect the existing rights of United States citizens.”

Lawmakers in the Lone Star State disagree. According to HB 149, sections 1021 and 1022 of the NDAA are “inimical to the liberty, security, and well-being of the citizens of the State of Texas” and violate both federal and state constitutions.

HB 149 notes that the Tenth Amendment to the Constitution, which greatly limits the role of the federal government, has been violated as the government has usurped powers that it was not intended to have. It states,

It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of Sections 1021 and 1022 of the National Defense Authorization Act for fiscal year 2012.

Violators of this statute may receive imprisonment of up to a year, a fine of no more than $10,000, or both, according to the bill.

The Tenth Amendment Center notes that Texas is just one in a string of states that has worked to override the provisions found within the NDAA:

Local communities in Colorado sent out the first warning shots, passing resolutions and ordinances rejecting such power earlier this year.

Then … Virginia Governor Bob McDonnell signed House Bill 1160, making that state the first to pass a law not only rejecting the federal act, but fully banning any state agency from cooperating with the feds on it.

Over 15 local communities have reportedly done the same. And Michigan is considering similar legislation.

Residents of Texas who support the legislation are encouraged to contact their state representative and senator here.

A second bill in Texas targets the controversial screening procedures of the Transportation Security Administration. HB 80, filed by GOP state Rep. David Simpson, is intended to prohibit what is perceived to be federal overreach by the TSA.

The Huffington Post writes:

The measure declares that any “intentional” touching of “the [private parts] of the other person, including touching through clothing,” without probable cause would be considered a violation of the law. It would also prohibit removing a “child younger than 18 years of age from the physical custody or control of a parent or guardian of the child,” and establishes broader restrictions on harassment or inconveniencing those desiring to avoid such searches.

The bill also asserts that it is the role of the state’s attorney general to defend the statute, and lists a variety of justifications he may use to do so:

If the government of the United States, the defendant, or the defendant’s employer challenges the validity of Section 39.03(a)(4), Penal Code, as added by this Act, on grounds of unconstitutionality, preemption, or sovereign immunity, the attorney general of this state … shall take any actions necessary on behalf of the state to defend the validity of the statute. The attorney general may make any legal arguments the attorney general considers appropriate, including that this Act constitutes a valid exercise of:

(1)  the state’s police powers;

(2)  the liberty interests of the people that are secured by the United States Constitution;

(3)  the powers reserved to the states by the Tenth Amendment to the United States Constitution; or

(4)  the rights and protections secured by the Texas Constitution.

If the bill becomes law, it will take effect in September of 2013.

This is not the first time Texas legislators have attempted to pass such a measure. In 2011, Representative David Simpson, who filed HB 80, spearheaded two bills which did not pass, HB 1937 and HB 1938, both of which specifically targeted the TSA. HB 1937 would have banned offensive touching of individuals who sought access to public buildings or transportation and punished those who broke the law. HB 1938 would have outlawed the use of “nude body scanners” at all Texas airports.

Unsurprisingly, HB 80 has garnered the favor of privacy advocates who view the TSA’s screening methods as being far too intrusive.

Tenth Amendment Center communications director Mike Maharrey said in a statement,

If you walk up to somebody and grab their crotch out on the street, it will land you in jail. Blue uniforms and federal badges don’t grant some goon the power to sexually assault you, or at least they shouldn’t.

A person doesn’t forfeit her or his personal dignity or Fourth Amendment protections with the purchase of an airline ticket.

Both HB 149 and HB 80 are examples of nullification, as Texas is using the authority found within the Tenth Amendment to reject federal overreach.

Ken Hoover of The John Birch Society observed last year, “We all are aware of how the so-called ‘war on terror’ has been used to chip away at our liberties.” Pointing to TSA procedures specifically, he continued, “It would appear that the main casualty of the ‘war on terror’ has been the Fourth Amendment. These intrusions need to be stopped.”

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Chris Hedges: A Victory for All of Us

Iraq War veteran Sgt. Shamar Thomas leads a demonstration in New York’s Grand Central Station to call attention to a law signed by President Barack Obama that granted extraordinary powers to the military.

Posted on May 18, 2012
By Chris Hedges

In January, attorneys Carl Mayer and Bruce Afran asked me to be the lead plaintiff in a lawsuit against President Barack Obama and Defense Secretary Leon Panetta that challenged the harsh provisions of the National Defense Authorization Act (NDAA). We filed the lawsuit, worked for hours on the affidavits, carried out the tedious depositions, prepared the case and went to trial because we did not want to be passive in the face of another egregious assault on basic civil liberties, because resistance is a moral imperative, and because, at the very least, we hoped we could draw attention to the injustice of the law. None of us thought we would win. But every once in a while the gods smile on the damned.

U.S. District Judge Katherine Forrest, in a 68-page opinion, ruled Wednesday that Section 1021 of the NDAA was unconstitutional. It was a stunning and monumental victory. With her ruling she returned us to a country where—as it was before Obama signed this act into law Dec. 31—the government cannot strip a U.S. citizen of due process or use the military to arrest him or her and then hold him or her in military prison indefinitely. She categorically rejected the government’s claims that the plaintiffs did not have the standing to bring the case to trial because none of us had been indefinitely detained, that lack of imminent enforcement against us meant there was no need for an injunction and that the NDAA simply codified what had previously been set down in the 2001 Authorization to Use Military Force Act. The ruling was a huge victory for the protection of free speech. Judge Forrest struck down language in the law that she said gave the government the ability to incarcerate people based on what they said or wrote. Maybe the ruling won’t last. Maybe it will be overturned. But we and other Americans are freer today than we were a week ago. And there is something in this.

The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole. And this, I think, decided the case.

“At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest noted. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”

The government has 60 days to appeal. It can also, as Mayer and Afran have urged, accept the injunction that nullifies the law. If the government appeals, the case will go to a federal appellate court. The ruling, even if an appellate court upholds it, could be vanquished in the Supreme Court, especially given the composition of that court.

Read more: Chris Hedges: A Victory for All of Us – Chris Hedges’ Columns – Truthdig.

Fight looms over detainee provisions

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05/13/12 05:25 PM ET
By Jeremy Herb and Carlo Munoz

The House will re-ignite a debate this week that last year sparked public outrage and a White House veto threat: Can terror suspects on U.S. soil be detained indefinitely?

Democrats and libertarian-leaning Republicans are planning to push an amendment to the Defense Authorization bill on the House floor next week that would strip out provisions allowing the military to hold terror suspects captured in the U.S.

 

The amendment would undo language from last year’s National Defense Authorization Act (NDAA) and go one step further to change the 2001 Authorization for Use of Military Force (AUMF).

Opponents of the detention laws warn that U.S. citizens are at risk of indefinite military detention if the law is not changed. Proponents claim the detention laws are a necessary tool in the fight against terror and last year’s bill merely codified current U.S. law.

House Armed Services Chairman Buck McKeon (R-Calif.) offered a fix to this year’s authorization bill granting habeas corpus rights to terror detainees.

But that didn’t go far enough for Armed Services ranking member Adam Smith (D-Wash.) and Rep. Justin Amash (R-Mich.), who are planning to offer next week’s amendment on detention.

“The problem isn’t Habeas; the problem is Americans being held without charge or trial forever,” Amash told The Hill.

The issue of military detention and U.S. citizens touched a nerve in the public last year, receiving wide coverage and getting attention from “The Daily Show” as it was debated in the Senate.

At issue is striking a balance between fighting the war on terror and guaranteeing due process rights in the Constitution.

Analysts who study military law have said that the executive branch already has authority to detain U.S. citizens.  The Supreme Court has yet to weigh in on whether citizens captured on U.S. soil could be detained indefinitely.

After the White House’s veto threat over detainee provisions in last year’s defense bill, lawmakers opted to water down the language. Despite the compromise, Obama issued a signing statement that said he would not detain U.S. citizens indefinitely.

Rep. John Garamendi (D-Calif.), who is backing Smith’s amendment, argued that the signing statement would not prevent future administrations from using indefinite detentions.

“The problem is emphasized in the president’s signing statement, which paraphrased said basically, ‘While this power may exist, I won’t use it,’ ” Garamendi said. “But will your successor use it? That’s what we want to get at.”

Supporters of the detention provisions argue that the military needs the ability to detain terrorists indefinitely to gather intelligence and prevent attacks. Republicans have opposed efforts to turn military suspects over to civilian courts, which the Obama administration has sought to do.

“Do I believe that language and the NDAA is a perfect protection of the liberties we cherish? Probably not,” said Rep. Jeff Landry (R-La.), who had problems with last year’s Defense authorization bill’s detainee provision.

“We’re having this debate because there’s a threat,” Landry said. “If the threat was eliminated there would be no need for the debate.”

Landry opposes Smith’s amendment, however, because he feels it’s too broad in covering anyone captured on U.S. soil, and not just American citizens.

Landry said the changes McKeon made to the detention language this year granting habeas rights to terror detainees satisfied his concerns from last year’s bill.

“What people were looking for was to ensure that there was some sort of due process when the executive detains someone,” Landry said.

A Republican House aide said Smith’s proposal goes too far with unintended consequences to the president’s traditional war powers, including providing an incentive for terrorists to come to the U.S. because they would have more rights here.

A sneak preview of next week’s floor debate on the issue played out in the Armed Services committee early Thursday morning as the authorization bill was marked up.

Smith offered and then withdrew an amendment that will be nearly identical to the one he’s introducing on the floor next week.

“It is very, very rare to give that amount of power to the president [and] take away any person’s fundamental freedom and lock them up without the normal due process of law,” Smith said.

“Leaving this on the books is a dangerous threat to civil liberties,” he added.

Republicans, however, pushed back in the other direction, as Rep. Duncan Hunter (R-Calif.) added an amendment to the bill that puts more restrictions on releasing Guantanamo detainees.

His amendment bumped up the Pentagon’s notification requirement to Congress to 90 days from 30 before releasing Guantanamo detainees.

Garamendi and Amash said they were optimistic that the amendment could pass on the House floor as it had support from both Democrats and Republicans.

Amash pointed to 43 Republicans who voted against the authorization bill last year, stemming from concerns about indefinite detention.

“This cuts across the entire spectrum of the Congress,” Garamendi said. “I think we’ve got a pretty good shot, and the public has really taken hold of this issue.”

But Landry, who said he’s had a number of productive conversations with Amash on the issue, was skeptical. He argued that the public concern — and his own — was covering American citizens and due process laws, and Smith and Amash are going beyond that by covering anyone captured on U.S. soil.

The authorization bill is due to go to the floor this week, and the Senate will be marking up its bill later this month, where the detainee debate is also likely to arise again.

Source

The Revolt Against the NDAA Hits Congress

House Republicans say they’re going to fix controversial provisions in Obama’s defense spending bill. Don’t believe it.

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By Adam Serwer
Fri May. 4, 2012 3:00 AM PDT

Facing a serious civil liberties backlash, Congress is considering changing a controversial counter terrorism law it passed last year. Yet the leading fix, backed by House Republicans, may not be a fix at all.

Last year, during consideration of the National Defense Authorization Act, Congress came close to authorizing the indefinite detention of American citizens captured on US soil who were suspected of terrorism. Ultimately, the House, the Senate, and the White House agreed on a compromise that would let federal courts decide whether such detentions were constitutional. That is, when confronted with the knotty question of whether the US government can detain its own citizens within the nation’s borders without charging them with a crime, Congress decided not to decide. Still, activists on the left and right remain concerned, because although President Barack Obama promised not to use that power, the law does not explicitly prevent him from doing so. In the months since Obama signed the bill in January, a strange-bedfellows alliance has raised such a ruckus over the legislation that Congress is now considering three separate proposals to amend the law.

“There has been significant constituent concern” over the NDAA, says Claude Chafin, a spokesman for Republicans on the House Armed Services Committee.

The revolt against the NDAA has brought together organizations and activists that disagree on almost every other issue—tea party activists, the states’ rights Tenth Amendment Center, the American Civil Liberties Union, and Occupy Wall Street protesters. The NDAA is “waking people up to the idea that the federal government shouldn’t have this kind of power,” says Michael Boldin, the director of the Tenth Amendment Center. “We’re seeing this weird mishmosh coalition of people.” In mid-April, Boldin’s group joined a number of other conservative organizations in filing a friend-of-the-court brief in support of liberal journalist Chris Hedges’ anti-NDAA lawsuit against the Obama administration.

The NDAA backlash has already fueled action on the state level. In Virginia, Republican Gov. Bob McDonnell recently signed a bill that could prohibit state authorities from “knowingly” aiding in the military detention of a US citizen. The Arizona Legislature passed a bill making it a misdemeanor for state officials to help the feds detain US citizens under the NDAA, and the Maine Legislature passed a joint resolution urging Congress and the president to amend the law to make it clear that Americans apprehended on US soil can’t be detained without trial. All three states have legislatures with Republican majorities.

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Congress is now considering three bills designed to quiet the uproar. One, sponsored by Rep. Ron Paul (R-Texas), would repeal the detention sections of the NDAA entirely. Another, sponsored by Rep. Adam Smith (D-Wash.), would ensure that suspected terrorists captured on US soil, whether they are citizens or not, could not be detained indefinitely without trial.

Then there’s a third bill, proposed by Rep. Scott Rigell (R-Va.), called the Right to Habeas Corpus Act. Rigell’s bill, which has 32 cosponsors, would do basically nothing. That’s because all it does is affirm the right of American citizens to have a judge evaluate the legality of their detention, and there has been no disagreement over that right since the Supreme Court affirmed it in 2004. The question has been whether the United States could hold suspected terrorists without ever charging them with a crime. Under Rigell’s bill, a future president could still potentially indefinitely detain an American citizen arrested in the United States on suspicion of terrorism, while Smith’s bill would prevent them from doing so.

Rigell’s bill is “addressing a habeas problem that doesn’t exist, and ignoring the real problem, which is indefinite detention without charge or trial,” says ACLU legislative counsel Chris Anders.

Rigell’s office didn’t respond to a request for comment. But Anders notes that detention authority can be a “confusing” and “difficult” area in which to legislate, partially because many of the issues aren’t entirely settled. Of the two bills that would actually alter the NDAA, Smith’s has 56 cosponsors in the House. Paul’s bill has five cosponsors.

Republicans in the House, however, seem much warmer to Rigell’s mostly symbolic legislation, with Chafin insisting it would “put to rest any doubt to the…purpose of last year’s NDAA.” The law’s critics don’t believe that. “We don’t trust Congress, who just passed this thing into law, to all of a sudden say, ‘Oh, we were wrong; we’re going to change it,’” Boldin said. That’s probably a safe bet.

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