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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.

Source

WHY COLLECT SO MUCH INFORMATION IF OBAMA REFUSES TO USE IT AGAINST TERROR?

Originally posted on The Counter Jihad Report:

images (73)

Breitbart, by JOEL B. POLLAK:

Yesterday America learned that the U.S. government is gathering information on our phone calls and can follow our every keystroke. We are reassured that the information is to stop terrorists. And yet the government fails to stop terrorists when it has information about them, because President Barack Obama refuses to understand that our enemy is radical Islam and the agencies he directs follow his disastrous lead.

As Mark Levin observed yesterday in an interview with Neil Cavuto on Fox News, Russian intelligence had contacted the U.S. and warned our government directly about Tamerlan Tsarnaev. The FBI interviewed him directly and decided to close the file. How would more information have helped stop the Boston Marathon bombing when the law enforcement agencies that had been provided information did not or could not act?

On Sep. 11, 2012, President Barack Obama was informed that the…

View original 422 more words

It’s Not a “Fiscal Cliff” … It’s the Descent Into Lawlessness

http://griid.files.wordpress.com/2012/07/obama_loves_banksters.jpg?w=563&h=421

by George Washington
12/24/2012

The “fiscal cliff” is a myth.

Instead, what we are facing is a descent into lawlessness.

Wikipedia notes:

In many situations, austerity programs are imposed on countries that were previously under dictatorial regimes, leading to criticism that populations are forced to repay the debts of their oppressors.

Indeed, the IMF has already performed a complete audit of the whole US financial system, something which they have only previously done to broke third world nations.

Economist Marc Faber calls the U.S. a “failed state“.   Indeed, we no longer have a free market economy … we have fascism, communist style socialism, kleptocracy, oligarchy or banana republic style corruption.

Let’s look at some specific examples of our descent into lawlessness.

Lawless Looting and Redistribution of Wealth

The central banks’ central bank – the Bank for International Settlements- warned in 2008 that bailouts of the big banks would create sovereign debt crises … which could bankrupt nations.

That is exactly what has happened.

The big banks went bust, and so did the debtors.  But the government chose to save the big banks instead of the little guy, thus allowing the banks to continue to try to wring every penny of debt out of debtors.

Treasury Secretary Paulson shoved bailouts down Congress’ throat by threatening martial law if the bailouts weren’t passed. And the bailouts are now perpetual.

Moreover:

The bailout money is just going to line the pockets of the wealthy, instead of helping to stabilize the economy or even the companies receiving the bailouts:

  • A lot of the bailout money is going to the failing companies’ shareholders
  • Indeed, a leading progressive economist says that the true purpose of the bank rescue plans is “a massive redistribution of wealth to the bank shareholders and their top executives”

And as the New York Times notes, “Tens of billions of [bailout] dollars have merely passed through A.I.G. to its derivatives trading partners”.

***

In other words, through a little game-playing by the Fed, taxpayer money is going straight into the pockets of investors in AIG’s credit default swaps and is not even really stabilizing AIG.

Moreover, a large percentage of the bailouts went to foreign banks (and see this). And so did a huge portion of the money from quantitative easing.  Indeed, the Fed bailed out Gaddafi’s Bank of Libya), hedge fund billionaires, and big companies, but turned its back on the little guy.

A study of 124 banking crises by the International Monetary Fund found that propping up banks which are only pretending to be solvent often leads to austerity:

Existing empirical research has shown that providing assistance to banks and their borrowers can be counterproductive, resulting in increased losses to banks, which often abuse forbearance to take unproductive risks at government expense. The typical result of forbearance is a deeper hole in the net worth of banks, crippling tax burdens to finance bank bailouts, and even more severe credit supply contraction and economic decline than would have occurred in the absence of forbearance.

Cross-country analysis to date also shows that accommodative policy measures (such as substantial liquidity support, explicit government guarantee on financial institutions’ liabilities and forbearance from prudential regulations) tend to be fiscally costly and that these particular policies do not necessarily accelerate the speed of economic recovery.

***

All too often, central banks privilege stability over cost in the heat of the containment phase: if so, they may too liberally extend loans to an illiquid bank which is almost certain to prove insolvent anyway. Also, closure of a nonviable bank is often delayed for too long, even when there are clear signs of insolvency (Lindgren, 2003). Since bank closures face many obstacles, there is a tendency to rely instead on blanket government guarantees which, if the government’s fiscal and political position makes them credible, can work albeit at the cost of placing the burden on the budget, typically squeezing future provision of needed public services.

In other words, the “stimulus” to the banks blows up the budget, “squeezing” public services through austerity.

Numerous top economists say that the bank bailouts are the largest robbery and redistribution of wealth in history.

Why was this illegal?   Well, the top white collar fraud expert in the country says that the Bush and Obama administrations broke the law by failing to break up insolvent banks … instead of propping them up by bailing them out.

And the Special Inspector General of the Tarp bailout program said that the Treasury Secretary lied to Congress regarding some fundamental aspects of Tarp – like pretending that the banks were healthy, when they were totally insolvent.  The Secretary also falsely told Congress that the bailouts would be used to dispose of toxic assets … but then used the money for something else entirely.  Making false statements to a federal official is illegal, pursuant to 18 United States Code Section 1001.

So breaking the rules to bail out the big, insolvent banks, is destroying our prosperity.

Lawless Justice System

A strong rule of law is essential for a prosperous and stable economy, yet the government made it official policy not to prosecute fraud, even though criminal fraud is the main business model adopted by the giant banks.

The perpetrators of the biggest financial crime in world history, the largest insider trading scandal of all time, illegal raiding of customer accounts and blatant financing of drug cartels and terrorists have all gotten away scot-free without any jail time.

There are two systems of justice in America … one for the big banks and other fatcats, and one for everyone else.

While Iceland prosecuted its top criminal bankers, and thus quickly got through its financial problems and now has a vibrant economy, the American government has done everything it can to cover up fraud, and has been actively encouraging criminal fraud and attacking those trying to blow the whistle.

The rule of law is now as weak in the U.S. and UK as many countries which we would consider “rogue nations”.    See this, this, this, this, this, this, this, this, this, this and this.

This is a sudden change.  As famed Peruvian economist Hernando de Soto notes:

In a few short decades the West undercut 150 years of legal reforms that made the global economy possible.

Moreover, U.S. government personnel are on the take.  They have become so corrupt that regulators are literally sleeping with industry prostitutes … while they pimp out the American people.

The corruption of government officials is staggering, and the system of government-sponsored rating agencies had at its core a model of bribery.

We’ve gone from a nation of laws to a nation of powerful men making one-sided laws to protect their own interestsin secret. Government folks are using laws to crush dissent. It’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.

It’s not a “fiscal cliff” … it’s an attempt to rape America … just like Greece and Ireland have been plundered.

Economics professor Randall Wray writes:

Thieves … took over the whole economy and the political system lock, stock, and barrel. They didn’t just blow up finance, they oversaw the swiftest transfer of wealth to the very top the world has ever seen. They screwed workers out of their jobs, they screwed homeowners out of their houses, they screwed retirees out of their pensions, and they screwed municipalities out of their revenues and assets.

Financiers are forcing schools, parks, pools, fire departments, senior citizen centers, and libraries to shut down. They are forcing national governments to auction off their cultural heritage to the highest bidder. Everything must go in firesales at prices rigged by twenty-something traders at the biggest and most corrupt institutions the world has ever known.

Economics professor Michael Hudson agrees … saying that the banks are trying to roll back all modern laws and make us all serfs.

Professor Hudson explained in 2008:

You have to realize that what they’re trying to do is to roll back the Enlightenment, roll back the moral philosophy and social values of classical political economy and its culmination in Progressive Era legislation, as well as the New Deal institutions. They’re not trying to make the economy more equal, and they’re not trying to share power. Their greed is (as Aristotle noted) infinite. So what you find to be a violation of traditional values is a re-assertion of pre-industrial, feudal values. The economy is being set back on the road to debt peonage. The Road to Serfdom is not government sponsorship of economic progress and rising living standards, it’s the dismantling of government, the dissolution of regulatory agencies, to create a new feudal-type elite.

Indeed:

Foreign Policy magazine ran an article entitled “The Next Big Thing: Neomedievalism“, arguing that the power of nations is declining, and being replaced by corporations, wealthy individuals, the sovereign wealth funds of monarchs, and city-regions.

Indeed, this isn’t the “Great Recession”, it’s the Great Bank Robbery. The big banks have pillaged and looted the rest of the world.

A lawless justice system is ruining the economy.

Lawless Central Bank

The non-partisan Government Accountability Office calls the Fed corrupt and riddled with conflicts of interest.   Nobel prize winning economist Joseph Stiglitz agrees, saying that the World Bank would view any country which had a banking structure like the Fed as being corrupt and untrustworthy. The former vice president at the Federal Reserve Bank of Dallas said said he worried that the failure of the government to provide more information about its rescue spending could signal corruption. “Nontransparency in government programs is always associated with corruption in other countries, so I don’t see why it wouldn’t be here,” he said.

Moreover, the Fed has broken the law by withholding information from Congress, letting unemployment rise in order to keep inflation low, and otherwise exceeding its authority under the Federal Reserve Act.

Acting in a lawless and unaccountable fashion is hurting the economy.

Lawless Attack on Democracy

The ability of the people to participate in their government’s decision-making is vital for a nation’s prosperity. But we no longer have democracy or a republican form of government in America.

The big banks own Washington D.C. politicians, lock stock and barrel.  See this, this, this and thisTwo leading IMF officials, the former Vice President of the Dallas Federal Reserve, and the the head of the Federal Reserve Bank of Kansas City, Moody’s chief economist and many others have all said that the United States is controlled by an “oligarchy” or “oligopoly”, and the big banks and giant financial institutions are key players in that oligarchy.

Laws are being passed in secret, and not even Congress knows what’s going on.

In other words, not only the justice system, but the entire system of American representation has been corrupted, thus harming the economy.

Lawless Infringement of Freedom

Personal freedom and liberty – and freedom from the arbitrary exercise of government power – are strongly correlated with a healthy economy, but America is descending into tyranny.

Authoritarian actions by the government interfere with the free market, and thus harm prosperity.

U.S. News and World Report notes:

The Fraser Institute’s latest Economic Freedom of the World Annual Report is out, and the news is not good for the United States. Ranked among the five freest countries in the world from 1975 through 2002, the United States has since dropped to 18th place.

The Cato institute notes:

The United States has plummeted to 18th place in the ranked list, trailing such countries as Estonia, Taiwan, and Qatar.

***

Actually, the decline began under President George W. Bush. For 20 years the U.S. had consistently ranked as one of the world’s three freest economies, along with Hong Kong and Singapore. By the end of the Bush presidency, we were barely in the top ten.

And, as with so many disastrous legacies of the Bush era, Barack Obama took a bad thing and made it worse.

But the American government has shredded the constitution, by subjecting us to indefinite detention, taking away our due process rights, deploying drones above our heads, spying on all Americans, and otherwise acting in attacking our freedoms.

Indeed, rights won in 1215 – in the Magna Carta – are being repealed.

Economic historian Niall Ferguson notes, draconian national security laws are one of the main things undermining the rule of law:

We must pose the familiar question about how far our civil liberties have been eroded by the national security state – a process that in fact dates back almost a hundred years to the outbreak of the First World War and the passage of the 1914 Defence of the Realm Act. Recent debates about the protracted detention of terrorist suspects are in no way new. Somehow it’s always a choice between habeas corpus and hundreds of corpses.

Of course, many of this decades’ national security measures have not been taken to keep us safe in the “post-9/11 world” … indeed, many of them started before 9/11.

And America has been in a continuous declared state of national emergency since 9/11, and we are in a literally never-ending state of perpetual war. See this, this, this and this.

In fact, government has blown terrorism fears way out of proportion for political purposes, and “national security” powers have been used in many ways to exempt big Wall Street players from the rule of law rather than to do anything to protect us.

So lawlessness infringement of our liberty is destroying our prosperity.

Lawless Initiation and Prosecution of War

It is well-documented that war destroys the economy.

Top U.S. government employees lied us into war, and used illegal torture, assassinations and other crimes of war in prosecuting the wars they unnecessarily started. They were – at a minimum – criminally negligent for failing to stop 9/11 (and see this).

In the name of fighting our enemies – the U.S. has directly been supporting Al Qaeda and other terrorist groups for the last decade. See this, this, this, this and this.

Our use of torture has also created many more terrorists than it has prevented.

Security experts – including both conservatives and liberals – agree that waging war in the Middle East weakens national security and increases terrorism. See this, this, this, this, this, this, this and this.

Indefinite detention, drone-strikes on innocent civilians, occupation of foreign countries, and most of America’s other tactics in the “war on terror” increase terrorism.

Terrorism feeds the cycle of war … and is thus harming our economy. (and because terrorism spooks people, they spend less, which further harms the economy).

So lawlessness in starting and prosecuting war is destroying our prosperity.

Postscript:  We’re not facing a “fiscal cliff”.  We’re facing a descent into lawlessness.  Stopping the fraudulent schemes, endless bailouts and imperial adventures is the place to start.

Source

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.”

Source

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.

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.

http://mjcdn.motherjones.com/preset_12/detainee-protest.jpg

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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