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You Are No Longer Free, Or Equal
the National Defense Authorization Act and the continuing descent into Fascism and Nazism of the United States
by
 Michael R. Burch
My fellow Americans, would it surprise you to learn that we are no longer free or equal, thanks to the new National Defense Authorization Act that President Barack Obama just signed into law? This act, which nullifies (or at least ignores) critical parts of the Constitution and Bill of Rights, seems eerily similar to certain acts used by the Nazis to imprison ordinary German citizens indefinitely, based on suspicion alone, without ever bringing forth charges or having a fair trial. This new law seems to suggest that if someone accuses me of being a "terrorist," I can be arrested by military police or quasi-military agents who can then whisk me out of the country to some backwater nation where I can be held secretly the rest of my life (and possibly tortured) without ever facing my accusers or being tried. And if I'm correct in my interpretation, the same thing can happen to you and your loved ones.

Suppose my son or your daughter met a charming person who talked them into handling some money or carrying a bag, and that charming person turned out to be a terrorist? How would we feel if our children disappeared into some dark dungeon, never to be seen again, because some overzealous military policeman or NSA agent fancied himself the second coming of Rambo?

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I'm not the only person who interprets the NDAA broadly as an incredibly bad piece of legislation. Here's a similar interpretation by Art Brennan, a retired New Hampshire superior court judge:

Many Americans are concerned about the recent amendment to the NDAA bill that was signed into law by President Obama. We should be. This assault on our rights is very difficult to read and understand. The difficulty probably has more to do with sloppy drafting than intentional misrepresentation. Anyway, I decided to do a sort of John Yoo interpretation of the thing and write it out in one paragraph of plain language. Here it is.

"Congress agrees with the President’s claim that he can order the forcible seizure, transportation and endless military imprisonment of any American citizen without legal proof and without access to the courts. The President’s chosen Americans can be imprisoned in the US or any other country or corporation the President chooses."

I am a veteran and a retired judge. I know something but not everything about statutory interpretation. I have also been an advocate and know a little about how to play on that one-way street. For an American imprisoned under this act it really doesn’t matter what any real judge thinks about this law because the imprisoned American has no access to the courts anyway. Kind of a snake eating its tail sort of thing.

***
I am an editor and publisher of Holocaust poetry. Through the years I have worked closely with Holocaust and Hiroshima survivors, trying to understand what they suffered and endured, while helping to put their terrible experience into words English-speaking people can understand (most Holocaust and Hiroshima survivors did not speak English, or at least not as a first langauge). I have also studied the early stages of what we now call the Holocaust. The rise of Nazism required a simple but horrific thing to happen: the Nazis had to deny ordinary German citizens access to fair laws and courts. If you watch the excellent movie Judgment at Nuremberg, which was nominated for eleven Oscars and won two, including best actor, you can easily see that the first stage of the Holocaust was to deny millions of innocent people the protections of fair laws and courts. Once the opponents of the Nazis (i.e., the sane Germans) had been stripped of these protections, they became easy prey and could be arrested on any whim, then spirited away to some terrible prison cell or concentration camp to be tortured and/or killed. The Nazi reign of terror began when average citizens lost their right to speak freely and dissent. Now it seems the same thing has just happened to average American citizens. In other words, to us.

As I understand this new legislation, we have, in effect, been stripped of our rights to speak freely, to dissent, and to be protected by fair laws and courts, here in the United States. Now all someone has to do if they want to "transfer" us to some other country where the laws and courts are unjust and torture is "legal," is to fabricate a story about us being "terrorists" or "enemies of the state," then call in the military police. If they do so, we will be utterly defenseless, and our families may never see us again. What has undoubtedly happened to thousands of Afghanis and Iraqis who never committed acts of terrorism, but were only accused of acts of terrorism by nameless accusers, can now happen to us.

Despite the fact that the leadership of all the major intelligence agencies (the Secretary of Defense, the Director of the FBI, the Director of National Intelligence, the White House Advisor for Counterterrorism, and the DOJ National Security Division head) have spoken out against the bill and its indefinite detention authority, President Obama still signed the act into law. Is that leadership, or following lemmings over a cliff?

***
Here are various opinions about the NDAA, from a number of credible sources; most of these were written before the act was signed into law.

Laura W. Murphy, director of the ACLU Washington Legislative Office:

The president should more carefully consider the consequences of allowing this bill to become law. If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.

This excerpt of an article from the New York Times by Andrew Rosenthal explains the genesis of the problem:

The [indefinite detention] provisions were co-sponsored by Senators Carl Levin, Democrat of Michigan, and John McCain, Republican of Arizona, both of whom should know better. Their excuse was that some Republicans had proposed worse rules. But the smart response to that situation would have been to block faulty legislation outright, not to make a really bad deal.

A deal, by the way, that Senator Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said was hashed out behind closed doors without consultation with his committee, or the Intelligence Committee, or the Defense Department, the F.B.I. or the intelligence community.

These new policies would all but remove the F.B.I., federal prosecutors, and federal courts from the business of interrogating, charging and trying suspected terrorists. Never mind that they have a track record of doing just that, legally and in the open. Instead, it would put those functions in the hands of the military, which is not very good at it, and doesn’t want to do it.

A second article from the New York Times by Andrew Rosenthal explains the genesis of the problem in more detail:

Sometimes I marvel at what passes for compromise in Washington.

Take, for example, what’s been going on in the Senate Armed Services Committee regarding the capture, questioning, detention and trial of terrorism suspects.

A while back, Republicans on the committee proposed a measure that would have essentially eliminated the role of federal law enforcement in dealing with terrorist suspects. It would also have enshrined in law the concept of indefinite detention without cause or trial.

Since the committee members tend to the conservative side and nobody in Washington seems to have the stomach to stand up to the right, Senator Carl Levin, the Democratic chairman of the panel, and Senator John McCain, the ranking Republican, drafted a joint bill that was only slightly less horrible.

The bill mandated military detention for all suspected terrorists—even, apparently, if the F.B.I. was in the middle of interrogating them. And they made it all but impossible to try any terrorist suspect in a federal court. Never mind that the federal courts have done this hundreds of times.

(This bill, like many of those passed since the 9/11 attacks, is entirely unnecessary. It fixes no problems. It creates them.)

That "compromise" tied the hands of investigators and harmed national security – in the opinion of the White House, the Pentagon, the intelligence community, the State Department, the Senate judiciary and intelligence committees and the Senate Majority Leader Harry Reid.

So Mr. McCain and Mr. Levin went back to their closed room and amended the slightly less horrible bill. They made some improvements. For example, they tried to fix the F.B.I.-interrogation problem (which they’d created) by calling for regulations that would explicitly allow continued questioning of a confessed al Qaeda member by non-military personnel. A better, easier solution: delete the provision for mandatory military detention.

In some ways they made things worse. It’s not clear how the new rules would apply to Americans and legal residents of the United States.

Many sensible Senators are protesting the "compromise compromise." The military and other agencies are still saying it degrades national security rather than enhancing it. And President Obama is threatening to veto the bill if the Senate and House pass it.

The trick is that all of this nonsense is attached to the annual military spending budget. But that should not deter Mr. Obama. More than 10 years after the terrorist attacks in New York and Washington touched off a frenzy of reckless and unnecessary lawmaking, it’s time to stop it.

Chris Anders, the ACLU senior legislative counsel:

No corner of the world, not even your own home, would be off-limits to the military. And there is no exception for American citizens. Section 1031 — one of the indefinite detention provisions — of the Senate-approved version of the NDAA has no limitations whatsoever based on geography, duration or citizenship. Despite the fact that the leadership from all the major intelligence agencies ... have spoken out in opposition to the bill and its indefinite detention authority, Congress is working behind closed doors to try to jam the legislation to the president’s desk very quickly. And the entire Senate bill was drafted in secret, with no hearing, and with committee votes behind closed doors.

I'm not sure which was more surprising — that the majority of senators ignored the pleas of countless constituents, or that they also ignored every top national security official opposed to the provisions. Opposition to the detention provisions came from Secretary of Defense Leon Panetta, CIA Director David Petraeus, FBI Director Robert Mueller, Director of National Intelligence James Clapper, White House Advisor for Counterterrorism John Brennan, and DOJ National Security Division head Lisa Monaco. The Senate ignored them all.
 
Back in May, the House of Representatives passed its own version of the NDAA, which had a provision authorizing worldwide war wherever any terrorism suspect resides, even if there is no threat to America or Americans. Buried in the bill is a sentence that lets the president order the military to lock up without charge or trial American citizens and anyone else he decides is a suspect, even if the person is right here in America or in such friendly countries as Canada, Great Britain, or France.

Now, the two bills are in conference committee. The chairmen and ranking members of the Armed Services Committee — known as "the Big Four" — have been having one secret meeting after another over the past few days to quickly write a final bill. Who are the Big Four? From the Senate, it is [senators] Carl Levin (D-Mich.) and John McCain (R-Ariz.) who were the very two who had secretly written the Senate indefinite detention provisions. The third member is the House Armed Services Committee Chairman Buck McKeon (R-Calif.), who is the person who wrote the House indefinite detention provisions without so much as a hearing. And the fourth member is the House Armed Services Committee Ranking Member Adam Smith (D-Wash.), who courageously fought the indefinite detention provisions on the House floor.

That's 3-1 for indefinite military imprisonment without charge or trial. There's good reason to worry about what the Big Four do in their secret meetings.

Here's a third article from the New York Times by Andrew Rosenthal:

The Sound of One President Caving

For a while, the administration encouraged people to think that President Obama would take a stand against the unnecessary and very dangerous provisions that Congress jammed into the annual National Defense Authorization Act. He threatened to veto the whole bill in order to block new rules that would mandate the military custody of most terrorist suspects, and officially sanction their indefinite detention, without due process.

Yesterday, the president backed down, completely. The White House announced that he was satisfied with a slightly watered-down version of the bill that was approved by conferees from both houses and would sign it.

I’m not all that surprised; this president has a nasty habit of giving in to political pressure. But I had let myself think that this issue was so important that Mr. Obama might take a stand. And I’m baffled now as to why he ever pretended to be taking one in the first place. It just reinforces the impression of a White House team that mumbles and fumbles.

The White House says there have been sufficient changes in the military detention provisions for the president to sign the bill. Not that I can see.

The final version still seems to require the military custody of suspected Qaeda operatives—but now the executive can make exceptions to that requirement. (The previous versions only allowed a waiver when the secretary of defense, the attorney general and the head of national intelligence all agreed.) It’s not clear to me how effective this waiver would be in practice, and it seems positively dangerous to leave this decision up to whoever might sit in the White House in future years. Remember, we got into this mess because a president thought he had the power to ignore the constitution and international law.

The bill no longer explicitly bans the use of civilian courts to prosecute Qaeda suspects, but it does authorize indefinite detention—not just for suspected members of Al Qaeda but also its allies. And who can say what that means? So among other terribly depressing consequences, the bill makes it virtually impossible to ever close Guantanamo Bay. (For more detailed information, see the Lawfare blog , which has been covering the NDAA closely, or read Charlie Savage in the Times.)

Most broadly, the bill continues the work President George W. Bush started. Mr. Bush and his supporters exploited the nation’s fear and insecurity after the Sept. 11 attacks (and Democrats’ insecurity about national security) to ram through several unnecessary bills, including the Patriot Act and a dangerous expansion of the government’s ability to spy on Americans’ international communications without judicial supervision. Now, Mr. Obama and the Democrats in Congress have proven that they’re equally willing to curtail civil liberties, and, in the process, further damage America’s global reputation as a defender of human rights.

I think it’s barely possible that Mr. Obama would sign a waiver of military detention when warranted. But it’s impossible to imagine a Republican successor doing that. And that’s the big point. This is supposed to be a nation of laws, not a nation of men we just really hope will make good decisions. I wish Mr. Obama saw that more clearly.

The ACLU:

Here is what the ACLU said on its website in response to this dreadful new law: "President Obama signed the National Defense Authorization Act (NDAA) today, allowing indefinite detention to be codified into law ... While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use it and would not affect how the law is interpreted by subsequent administrations. The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield. Under the Bush administration, similar claims of worldwide detention authority were used to hold even a U.S. citizen detained on U.S. soil in military custody, and many in Congress now assert that the NDAA should be used in the same way again. The ACLU believes that any military detention of American citizens or others within the United States is unconstitutional and illegal, including under the NDAA. In addition, the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war. We are extremely disappointed that President Obama signed this bill even though his administration is already claiming overly-broad detention authority in court. Any hope that the Obama administration would roll back those claims dimmed today. Thankfully we have three branches of government, and the final word on the scope of detention authority belongs to the Supreme Court, which has yet to rule on the scope of detention authority. But Congress and the president also have a role to play in cleaning up the mess they have created because no American citizen or anyone else should live in fear of this or any future president misusing the NDAA’s detention authority. The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally."
***
Does the just-passed NDAA protect American citizens from terrorists, or the U.S. government from American citizens? Do Americans realize that they may have just lost their rights to freedom of speech and dissent, and to trials before Americans judges versed in the Constitution and two hundred years of legal precedents? Do Americans realize that they can now be arrested by military police or quasi-military agents who can whisk them off to some foreign country where they can be tortured day and night, till the day they die, with no hope of a trail or even a hearing? Do Americans realize that if they unknowingly talk to suspected terrorists on the phone, via email, or in a restaurant or shopping mall, they may lose their freedom for life, with no chance to explain what really happened, except to their torturers?

I woke up this sunny New Year’s Day morning with a positive attitude and bright hopes for the New Year. Then to my shock and dismay I learned that President Barack Obama had just signed the National Defense Authorization Act into law, presumably as his final act of 2011. With a whisk of his pen, he whisked away the most basic human rights and freedoms of 300 million American citizens. The following information comes from Wikipedia; I have added my comments in italics. Please understand that I am not, by nature, an Obama basher. I was happy to see the United States reach the point where a man with darker skin and an unusual-sounding name was able to win a presidential election. I am not a "birther," nor do I worry about President Obama not being "American enough" or "Christian enough," etc. What worries me most about President Obama is that he seems to creeping toward fascism, Nazism and Stalinism, along with many other American politicians and much of the American public.

The National Defense Authorization Act (NDAA) for Fiscal Year 2012 is a new law signed by President Barack Obama on December 31, 2011. Although the White House and Senate sponsors maintain that the Authorization for Use of Military Force Against Terrorists (AUMF) already grants presidential authority for indefinite detention, the Act legislatively codifies the President's authority to indefinitely detain terrorism suspects, including American citizens, without trial as defined in Title X, Subtitle D, SEC 1021(a-e) of the law. Because those who may be held indefinitely include U.S. citizens arrested on American soil, and because that detention may be by the military, the Act has received critical attention by the American Civil Liberties Union (ACLU) and media sources.

The creeping (and very creepy) nazification of the United States continues. The idea that American citizen can be detained for the remainder of their natural lives without a trial is beyond scary: it’s terrifying. But things quickly get much worse, as we soon shall see ...

Pursuant to the AUMF passed in the immediate aftermath of the September 11, 2001 attacks, the NDAA text affirms the President's authority to detain, via the Armed Forces, any person "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces," under the law of war, "without trial, until the end of hostilities." The text also authorizes trial by military tribunal, or "transfer to the custody or control of the person's country of origin," or transfer to "any other foreign country, or any other foreign entity."

"Until the end of hostilities" obviously means, at least potentially, "until the end of one’s life on earth," as the "war on terrorism" is unlikely to ever end. The fact that American citizens can be "arrested" by military police (I presume this includes CIA or other quasi-military agents) and "transferred" to "any other foreign country" or "entity" is also terrifying. This seems to be code-speak for "Your increasingly fascist government now has the right to transfer you to some dark dungeon where even worse fascists can torture you until you expire."

An amendment to the Act that would have explicitly forbidden the indefinite detention without trial of American citizens was rejected.

I find this the most troubling aspect of this dark, deeply disturbing new law. Why on earth would American politicians who believe in the sacredness of the rights of American citizens not at least explicitly protect Americans citizens from being stripped of their rights and subjected to indefinite detention without charges, hearings or trials? I can only conclude that such American politicians are not really American. Barack Obama's birth doesn't trouble me in the least, but his beliefs trouble me deeply, as do those of every other American politician who vote "aye" to this horrendous new law.

All persons arrested and detained according to the provisions of section 1021, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces. The requirement does not extend to U.S. citizens. Lawful resident aliens may or may not be required to be detained by the Armed Forces, "on the basis of conduct taking place within the United States."

In other words, "Your increasingly fascist government will use any and all plausible (or, more likely, implausible) excuses to strip you of your rights and freedom." This sets us back to the dark days before the Magna Carta, when feudal kings could imprison, torture and kill commoners as they pleased.

The White House had previously threatened to veto the Senate version of the Act, arguing that "the authorities granted by the Authorization for Use of Military Force Against Terrorists, including the detention authority, are essential to our ability to protect the American people ... Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk." The White House also argued that provisions requiring military detention of terrorism suspects on American soil were "inconsistent with the fundamental American principle that our military does not patrol our streets." After a Senate-House compromise text explicitly ruled out any limitation of the President's authorities, and removed the requirement of military detention for terrorism suspects arrested in the United States, the White House issued a statement saying that it would not veto the bill.

In other words, although the "White House" (i.e., Herr Fuhrer Obama) knows that the NDAA strips American citizens of their most basic constitutional rights, once the White House/Herr Fuhrer Obama was assured that its/his rights would not be limited, it was just fine and dandy to sign away the rights of 300 million American citizens.

During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. citizens; the amendment was rejected by a vote of 38–60. Udall subsequently voted for the Act in the joint session of congress that passed it, and though he remained "extremely troubled" by the detainee provisions, he promised to "push Congress to conduct the maximum amount of oversight possible."

Holy cow, Batman, that solves everything! After we have been stripped of our most basic rights and freedoms, we can live in hope that a dysfunctional Congress will "oversee" the military police who "arrest" us on vague suspicions, then "transfer" us out of the country to some dictatorship where Congress has absolutely no jurisdiction, and then while we are being tortured to our last dying breath, Congress (the Fourth Reich) and the White House (Herr Fuhrer Obama) will magically make the impossible happen! They will "oversee" what they cannot possibly see: once-free Americans being reduced to gibbering zombies.

A later amendment to preserve current law concerning U.S. citizens, lawful resident aliens, and others captured within the United States, sponsored by Senator Dianne Feinstein, was accepted 99 to 1. Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while the Obama Administration and Senators John McCain and Carl Levin have argued that it does.

Let us hope the Herr Fuhrer Obama, Herr McCain and Herr Levin are not allowed to have their fascist ways with American citizens. Fascists are always concerned with their rights and their personal power over the masses. I believe this Unholy Trinity has just revealed its true colors, by making a mockery of the Declaration of Independence, Constitution and Bill of Rights.

Section 1021 and 1022 have been called a violation of constitutional principles and of the Bill of Rights. Internationally, the UK-based newspaper The Guardian has described the legislation as allowing indefinite detention "without trial [of] American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay."

It’s hard to read this new law any other way, I’m afraid. We shall have to change the lyric from

The land of the free and the home of the brave!

                                 to

The land of the sheep and the home of the slave!

Al Jazeera has written that the Act "gives the US military the option to detain US citizens suspected of participating or aiding in terrorist activities without a trial, indefinitely."

Surely "the smartest man in the room" must understand this also. Since he didn’t veto the new law, it’s hard to understand how he is not one of the new crop of American Fascists. In his book The Audacity of Hope, he swore to uphold the Constitution. In reality, it seems he just shat all over it, please pardon my French.

The official Russian international radio broadcasting service Voice of Russia has compared the Act to legislation passed by the Third Reich.

I will second and third that emotion.

The Act has been opposed by the ACLU and Human Rights Watch, and received criticism from The New York Times, the World Socialist Web Site and other news organizations.

I believe anyone with functional eyes, heart, brain and sense of justice would oppose this new descent into fascism. Let’s hope the American public refuses to stand for this outrage. Hopefully, American judges who have studied the Constitution and still believe in it will instruct Herr Fuhrer Obama and the Fourth Reich to cease and desist.

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