WatchI just can't quite believe this, but it seems to be true.
Is it now really legal for the military to imprison US citizens forever without trial?
The NDAA certainly seems to say so, according to two retired four-star Marine generals:
One provision would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past. Some claim that this provision would merely codify existing practice. Current law empowers the military to detain people caught on the battlefield, but this provision would expand the battlefield to include the United States — and hand Osama bin Laden an unearned victory long after his well-earned demise.
Soon even questioning the absolute control of the 1% over the US economy and government will also be classified as involvement with terrorism. That's what this is really about.
Another law called SOPA is intended to allow the quick shutdown of websites that even so much as give a link to material the government does not want you to view. It starts with copyright enforcement, but copyright enforcement is mere practice for other kinds of censorship. It does not seem coincidental that the NDAA violation of the Constitution happened so close to the SOPA proposal to censor the internet. Copyright is wrong. The Pirate Party is right.
The NDAA provisions are not legitimate and must not be obeyed by anyone working for the government or in the military. Please contact everyone in the military that you know and tell them they must not obey any orders that violate the fourth amendment. You might also send them a copy of the bill of rights to remind them what they are supposed to be defending.
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Just to clarify who is in control in this country, and the rest of the world, since this generally a point of confusion...
The 1% "rich" are not in control.
The 0.1% fabulously powerful central bankers, who own 150+ central banks in nearly every country, are in total control.
All governments have the power to issue their own debt, at will. However, they instead have the private central bankers do this, who then charge interest for borrowing that money. This interest then becomes a tax upon the populace. This is how business agreements are made.
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bgamall4 says
Tell it to the Uighurs. A bunch of innocent, persecuted minorities sold to American military by bounty hunters.
Are you afraid of Uighurs?
And remember, they were completely innocent!
And then there's this.
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Isn't THAT what the Terrorists wanted ?
What happened to HOME OF THE BRAVE ?
Will we attack our own people Because of some foreign terrorists?
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Did we discuss the NDAA and Gitmo yet?
Yeah, the NDAA also requires Gitmo to stay open and forbids the release of any prisoners until... you guessed it... "The end of hostilities".
Which, knowing the middle east and lawyers, is effectively forever, until it's overturned.
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I voted for Ron Paul in 2008.
It was the last time I intended to vote.
Since then, I've lost all hope.
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Vicente says
That was during an actual war, that lasted from 1941 to 1945 for America.
This is forever. This war war is not actually declared, there is no specific enemy, and there is not way to say it's over. Who would actually surrender?
thunderlips11 says
Exactly.
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bgamall4 says
I was told by a professional-looking man in a lab coat on my 60-inch plasma TV that you are a pedophile antichrist who should be buried 100 feet underground in order to save the human race. And I believe him.
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033 says
Which is part of the Saul Alinsky plan, in his "Rules for Radicals."
Make them lose hope. Now is your time to make Saul give you a righteous tossed salad, just the way you like it.
One thing about these Fabians... they hide behind their Alinsky lies and half-truths because they are afraid to show their real face in the real world, where real men reside. Fabian socialism was designed by sissies, for sissies. It will be easy to eat them for breakfast, when the time comes for that.
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Patrick says
This is a welfare for military complex. They get cushy contracts, make lots of money. While our boys get killed overseas for no good cause, in an unnecessary war.
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Vicente says
You normally have very good counterpoints, but you're reaching this time.
The point here is either this law is meant to be used, or the threat of the law is meant to be used to cow us into something we would never otherwise accept. Either way, such a blatant violation of what most of us thought this country stood for at one time or another, is disturbing to say the least.
This isn't another kooky end-of-the-world preacher, or racist asshole punching every gook they see... This is a government that has dramatically grown in size and power over the past 10 years.
We can't wait till we're dragged off to some dark hole to decide this is real, we have to fight it now!
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Let me see.... I can sign this defense bill and get on with my life.....
Or I can VETO it, and turn every Congressional bill into a showdown just like the Republicans seem to want to do lately.
No brainer, sign it and move on.
I don't like it either. However I can see why it went down that way.
Jose Padilla was detained in 2002 until convicted in 2007, well before NDAA, so apparently it wasn't badly needed as the Glenn Beck crowd might think.
In the Whitehouse signing statement it's explicit:
"The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.”
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msilenus says
Shrek is a Birther. You would be wise to not put much stock into anything he says.
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Vicente says
Why couldn't they just try the bastard in court? If he was breaking a law, he should be charged with that crime. If he wasn't breaking any law, he should not be held without trial.
That's the part I don't understand. How that it possibly be justified to hold people without trial?
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Patrick says
What do you mean by "hold people without trial"?
As long as a trial is on the schedule at some point, you can DETAIN people on charges until the trial is held. There's probably a lot of people who think this is something really new under the sun when it's not. Even before George Bush there were plenty of people complaining about the YEARS you could spend languishing in jail awaiting trial. The difference with most of this "terrorist" stuff versus traditional criminal trials, is it's increasingly been turned into a deliberate limbo so various intelligence agencies can try to wring information out of people. Once you convict someone, you lose a lot of leverage eh?
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shrekgrinch says
This is a meta-fantasy. I never made any specific claims about what McCain would have done.
It is not a fantasy that McCain introduced the provisions you're excoriating, and in a much more draconian form. It's not a fantasy that he voted against their more complete removal. Obama has disparaged the provisions and promised not to use them, whereas McCain tried to made it illegal for Obama *not* to use military detention for civilians.
Because, McCain argued, the administration's approach is "inconsistent." We use law enforcement in some cases, and the military in others. How dreadful -McCain apparently thinks- that we use the FBI in Oregon and SOCOM in Afghanistan.
This is emblematic of conventional thought within the GOP.
You're saying that conservatives warned us about Obama in 2008. Did conservatives warn us about McCain? Did conservatives warn us about the GOP? It's a fair question. The answer is, obviously, "no." You're sitting in a glass house as you cast these stones.
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OK, "without trial" wasn't accurate enough.
People can be held forever under the NDAA without even being charged with anything. Ever.
How can that possibly ever be justified? If someone did something illegal, charge them. If they didn't do anything illegal, try them in a reasonable amount of time or let them go.
Does this new law of permanent imprisonment without charges or trail derive from the "consent of the governed"? Didn't think so.
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GameOver says
Yes, Obama should not have signed that Republican provision for permanent imprisonment without charges or trial.
Oh yes, it was created by Republicans and they voted for it much more than Democrats did.
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Patrick says
Think of the Civil War. Try to put yourself in the moment.
Do captured Confederate soldiers who act within the rules of war get charged with crimes?
Do they get trials?
Is "until the end of hostilities" a knowable time? (Or is it, effectively, indefinite, as far as anyone knows?)
Are these prisoners natural born citizens of the United States?
- -
Detention of enemies until the end of hostilities in order to prevent their return to the battlefield is an important executive perogative during a time of war. It has never been denied to any Commander in Chief as long as we've been a nation. It must be permitted.
The more I read and think on this topic, the more sure I am that the most important thing is to have is some kind of judicial oversight preventing the executive from calling people enemy combatants in bad faith. Such a check need not determine if a prisoner has done anything wrong. Enemy soldiers frequently have not. The necessary check is simply to determine their status vis-a-vis the laws of war: civilian, or combatant; to ensure that if they are entitled to the civilian forms of due process, that they get them.
As long as the executive can't get away with categorizing individuals as combatants in bad faith, or with incompetence that amounts to the same, then the (necessary) power to detain prisoners indefinitely cannot be abused without grave risk to the abuser.
The courts have been jealously guarding their constitutional privilege to ensure that such a check exists. It's hard to imagine them giving that up, and I don't see anything in NDAA that even tries to step on their toes.
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GameOver says
Behold, the depth of your ignorance:
http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld
http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld
http://en.wikipedia.org/wiki/Rumsfeld_v._Padilla
http://en.wikipedia.org/wiki/Boumediene_v._Bush
http://en.wikipedia.org/wiki/Rasul_v._Bush
Those are just the major Supreme Court decisions that have been handed down dealing with these people.
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Hamdi v. Rumsfeld was initiated by Hamdi's father, but Hamdan was initiated by Hamdan. That was made possible by Rasul v. Bush, which found that U.S. courts can hear Habeas petitions filed by Guantanamo detainees. Yes, I read the links. Yes, Wikipedia is a weak reference. Before moving past a Wikipedia-level understanding of an issue, it is useful to achieve a Wikipedia-level understanding of an issue, and Wikipedia can get one to that level pretty quick. Hence my linking those Wikipedia articles to you.
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msilenus says
An actual insurgency. Insurgencies are domestic oriented events, populated by nationals. They try to seize areas, replace elected officials, and impose a new regime.
I didn't see any "Battles of Fort Rhee" where 200,000 US Citizen domestic Muslim Separatists faced 300,000 US Soldiers on US soil recently.
Terrorism has been around since the dawn of time. The end of hostilities therefore means "never".
The deadliest act of terrorism on US soil was committed wholly by foreign nationals who overstayed their visa by many months. The rest of the acts since 9/11 were unstoppable, unplanned acts of nuttiness by lone nuts, or the FBI feeding small groups of mixed nuts with guns, money, and flattery - entrapment.
Before we junk the 4th, we might try more modest reforms, like, I don't know, allowing local police to check and detain visa overstays. The way most other Nations' local police forces can do. But that would interfere with business' access to cheap labor (called by the MSM: "Xenophobia" or "Nativism").
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msilenus says
A time of war???? So an act of terrorism by 18 people constitutes war against a nation of 320 million people. War means standing armies, not terrorist acts by people living in caves. Get a sense of proportion please. The second largest terrorist attack in America was a couple nut job survivalists. Is that an act of war also? Should we send in the military to Idaho, Montana, and Utah and clear out all the nut job survivalists that live there?
I can't even begin to fathom why the war on terrorism exists. The response is so out of proportion to the actual threat that there just has to be something deeper going on. Europe and Israel have been dealing with terrorist attacks forever. They never mounted a war on terrorism or turned their countries upside down and inside out endlessly. It simply doesn't make any sense. I'm not saying we shouldn't be dealing with terrorism, just that it should be in response to the actual level of threat. The 9/11 attack happened because a lot of people dropped the ball, not because there wasn't any anti terrorism in place. Many of the problems with the entire anti terrorism effort that made 9/11 possible still exist. So are we actually looking to protect the citizens against terrorism or not?
Not to sound paranoid but throughout history pursuing endless wars that don't make strategic sense is one of the classic signs of the end game of a nation in decline. Focus on external threats and distract the populace rather than dealing with internal problems. Just saying.
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bob,
Intelligent points. Thanks for bringing a lot of common sense and also a sense of proportion to the discussion.
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Thunderclips,
Don't confuse the title of the war (War on Terror) with the policy it represents. The language of the declaration of war identifies our enemies as something like "Al Quaeda, the Taliban, and associated entities." That's ambiguous, but functional. AQII and AQAP are obviously covered. A resurgent IRA would not be. The point of the war is to permanently defeat these organizations, to prevent them from ever attacking us again.
Which amounts, in some sense, to being at war with an idea. It's not an encouraging thought.
And yet: we've made significant progress toward winning this war. Really winning it. Going into it would be a bit of a tangent, but suffice to say that core to bin Laden's ideology was the notion that the U.S. keeps the Muslim world weak by propping up dictatorships. It's a thesis that's incompatible with the American response to 9/11, the war in Iraq, and the entire Arab Spring. Consequently, Al Quaeda --and, more importantly, their entire system of thought-- is becoming irrelevant in the Muslim world. Their pestilent ideology is being defeated by force of arms, and by Facebook.
There won't be a clear end date, and the end won't even be soon, but there will be an end to hostilities. If the past is prologue, then the courts will be the ones to let us know when that happens. (They've already explicilty rejected the notion that our Guantanamo prisoners could be detained past the end of hostilities. I think that's another thing the Bush administration was trying to get them to agree to.)
I don't want to go down that tangent any farther, but a little dip seemed necessary. You seemed to be calling into question the idea of whether or not this is a real war, leaning instead toward calling it a law enforcement problem. That's a false dichotomy: it's both. Even while the FBI, DHS, local police departents, et cetera, are responding to immediate domestic threats, the WOT is also a real war being fought overseas (in Afghanistan, Yemen, and probably other places) to disrupt and destroy the organizations that attempt to mount these attacks. It's hard, but winnable, and we're doing fairly well.
In wars, nations take prisoners. They hold them without trial, without charges, and with no fixed date of release. We are at war.
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I should add that to the extent that people (perhaps including Thunderclips) argue that we ought not be in a state of war, I won't debate the point. That's not because I agree. It's because that's plainly irrelevant. If we're at war, then certain things follow from that, irrespective of whether or not the war is good policy. One of those consequences is the holding of enemies without trial, and with no fixed end date.
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msilenus says
Why is that irrelevant? I would argue that the causes for going to war is as important and relevant, if not more than the actions that follow from the reasons.
If you establish that the reason is ridiculous, the actions that follow from the reasons are also ridiculous.
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msilenus says
There is also "Belligerent Act" which is includes this nebulous definition:
“1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.”
The UK certainly qualifies as a coalition partner, so the IRA could be part of the mix.
Then there is "Associated Entities"
Example: Colombian Cocaine Smugglers deal guns or drugs with an AQ cell in South America. A mid level US drug dealer is an alleged distributor for this Colombian Cocaine Ring, and may have even been in Bogota at the time the rest of the smugglers met with AQ operatives.
Now the executive has color of law legal cover that the drug dealer is now an "Associated Entity". Historically, US Judges have been loathe to second guess the executive on national defense and foreign policy.
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msilenus says
Really? The US was happy to see Mubarak go? What about Bahrain or Saudi Arabia or the UAE - major centers of fundamentalist terror funding?
A successful revolution against a pro-US dictator is accompanied by hand-wringing and pleas for the populace to put off demands for democracy and let the dictator's former military and intelligence officials run the country.
I love the double standard. Protesters against a US-unfriendly dictator are lauded; Protesters against a US-friendly oligarchy are ignored when they are beaten and tortured (just some generic, disinterested comments from the Sec of State about restraint). Any sympathy for the ethnic majority (Shi'a) being oppressed by the Sunni minority is met with Iranian Conspiracy Theories. Another US friendly Monarchy next door helps crush the protesters by sending in their own US-supplied tanks.
msilenus says
So when the Prime Minister of AQ surrenders, we'll have peace.
There will always be radical Islamic groups, just like there will always be radical Christian and Jewish groups.
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Thunderclips,
Your U.S. arms dealer can challenge his status as an enemy combatant, and can appeal all the way to the Supreme Court if the process is unfair.
You're probably tempted to invent more particulars. Realize that the courts will weigh those particulars, if they're relevant.
thunderlips11 says
Except in the five Supreme Court cases I've cited above? You're right in general, but wrong in this particular. The courts have proven quite enthusiastic in checking the executive on detention practices.
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GameOver says
Those laws were struck down (in a case involving a Bosnian citizen.) Here's the case again:
http://en.wikipedia.org/wiki/Boumediene_v._Bush
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msilenus says
No, that's not what I'm referring to. The courts in those cases did not overturn claims by the executive as to what organizations are "belligerents". They were mostly about procedure and jurisdiction.
Those cases also, obviously predate the CODIFICATION of these powers into statue via the NDAA.
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thunderlips11 says
Kind of. Bin Laden's flavor of Global Jihadism --this idea that you can advance the spread of Islam by crossing the sea and murdering Americans-- is not historically entrenched, and, also, dumb.
When people stop buying that line of thought, the organizations will wither and die under our unreleneting military pressure. It's happening now.
The U.S. response to the Arab Spring has been nuanced, but it defies your characterization. The U.S. has strong ties to the Egyptian military (the awesome amounts of military aid we give them, per the Camp David Accords, give us significant pull), and almost certainly backed the ouster of Mubarak. Qadaffi wasn't an enemy anymore when we intervened against him. In fact, he was the shining example of a proliferator who "came in from the cold" and was able to rejoin the international community. (So much for that.) Bush took Qadaffi off the list of state sponsors of terror years ago. Syria is clearly an Iranian proxy, and we'd love to disrupt that relationship, yet we've confined our response to taking policy stances and issuing sanctions.
We've backed the revolutions that have a real chance, in the ways that made sense to back them, based on their individual characteristics. The only sense in that you're right is that we haven't sided against any of our strongest and most necessary strategic allies. But then, none of those allies have faced any really credible threats. Certainly nothing on the level of Syria, Libya, or Egypt.
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thunderlips11 says
Procedure and jurisdiction matter!
http://en.wikipedia.org/wiki/Boumediene_v._Bush#Aftermath
http://www.nytimes.com/2012/01/08/opinion/sunday/my-guantanamo-nightmare.html?_r=1
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thunderlips11 says
I'll come back to this later. I want to get a bit more settled on status quo before moving on to discussing how NDAA impacts things.
That gets past Wikipedia.
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msilenus says
Didn't say it didn't. Just that courts generally won't challenge the executive's labeling of groups considered hostile or belligerent.
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I don't think the courts will, either. Here's what I'm maintaining*:
a) The courts exercise substantial oversight over the exeutive's labeling process. They've defied the wishes of the other two branches to assert that authority. Laws lie dead in their wake. The oversight aims to prevent abuse, and encourages correct outcomes.
b) That dynamic is effective. We know this empirically. The executive has been overzealous in holding innocent men. We know because the courts caught them (the executive,) and released them (the unjustly held prisoners,) and we can read all about it in their (the former-prisoners') New York Times op-eds.
I maintain that these are facts. Hearty and heartening facts that make you want to shout viva la Constitución! They're also not very commonly known. Or, if commonly known, then not commonly acknowledged in breathless online debates about how our ruined civil liberties lie in ruinous ruin.
* List not comprehensive. Other positions stand and are maintained.
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msilenus says
I think the people that are protesting this so much aren't saying that our civil liberties lie in ruin. The point is that the road toward fascist dictatorship happens one little step at a time. Rather than reverse the trend, Obama has reinforced it. It is disturbing.
That Donahue video and his point about Ron Pauls foriegn policy position is also very disturbing and telling.
Why is it that nobody can be an anti war candidate ? I get it that Ron Paul is to extreme on too many issues, but his position on war, and our ridiculous defense spending is a popular point of view. How come almost no politician has that view?
It's not a newsflash that American democracy is severely broken.
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marcus says
Yes, exactly. Very disturbing that Obama could sign something like that. I expected it from Bush, since he campaigned on being an asshole and so had to prove just what an asshole he really is. That's a kind of honesty in a sick way.
But Obama is being dishonest. He campaigned on transparency, civil liberties, closing Gitmo, etc. But his actions prove he didn't really mean it. He's willing to sign a law which clearly violates the Constitution. Saying one thing, doing another. The very definition of hypocrisy.
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We're not creeping toward fascism. We've been violently lurching back and forth for much of the last decade. Lurch: Bush petitions the Supreme Court to neuter habeas corpus and judicial review. Lurch: He loses. Lurch: Detainees get right to petition for own release. Lurch: Congress passes a law suspending habeas corpus. Lurch: Supreme Court knocks it down. Lurch: End of torture. Lurch: Detainees start winning their detention challenges.
Two stumbles forward, one stagger back. That's how it's been going, and the overall trend has been resoundingly positive.
NDAA is creeping back a bit in some ways. Not nearly as much as people think. It can't suspend habeas corpus implicitly, because Congress has already tried that explicitly (Detainee Treatment Act of 2005), and that was ruled unconstitutional. The idea that detainees can petition to challenge their categorization is now very difficult for either of the political branches to assail, absent an actual invasion of the U.S. or widespread insurrection. Habeas and due process are protected in ways that can't be touched short of a constitutional amendment.
I've been doing a bit of reading up on the NDAA, detention, et cetera, over at the lawfare blog. It's a good resource, stocked with lawyers who make these detention and war issues their specialty. They have a strong pro-human-rights bias. They know the caselaw. The quote below is the second-worst thing they say about NDAA (The worst is that it continues to make closing Guantanamo illegal; not a change from status quo, and no one here seems concerned about that.):
Granted. It shapes perceptions in some bad ways, and might offer some political (not legal) cover. But compare that assessment to the rhetoric. And compare that cost to the cost of cutting off funds to an army conducting operations in a time of war.
They also cite some improvements. For example, NDAA makes it a bit easier for the administration to transfer prisoners out of Gitmo. They are also very excited about how the law makes explicit reference to the laws of war when discussing detainees. That's significant, because it happens in the context of an ongoing judicial dispute over whether or not laws of war constrain the executive's treatment of unconventional combatants. The current administration is urging courts to conclude that they do, but different courts have concluded differently. Now Congress seems to agree, which could well settle that issue.
NDAA is a mixed bag on the human rights front. Whether it's two creeps forward one creep back, or two creeps back and one creep forward is a matter of perspective. It's not another lurch in the wrong direction, which is what everyone seems to be taking it as.
http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-i/#more-4643
http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-ii/#more-4646
http://www.lawfareblog.com/2012/01/in-praise-of-the-signing-statement/
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Addendum: apologies for the late reply. I promised Thunderclips to get past Wiki, and around to the NDAA, but couldn't do it promptly.
Edit: And if you're interested in this stuff, definitely read those links. They're long, and not the easiest of reading, but very interesting.