You Are No Longer Free, Or Equal
the National Defense Authorization Act and the continuing descent into Fascism
and Nazism of the United States
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
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
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?
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
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
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
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
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
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.
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
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
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
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!
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
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.