America’s Vanishing Civil Liberties & The Controversy of Indefinite Detention

April 19, 2012 § 18 Comments

By Tai Carmen

“Our defense is in the preservation of the spirit which prizes liberty as a heritage of all men, in all lands, everywhere. Destroy this spirit and you have planted the seeds of despotism around your own doors.” ~ Abraham Lincoln

“Those who would sacrifice essential liberty to obtain security deserve neither and will lose both.” ~ Benjamin Franklin

“The natural progress of things is for liberty to yield and government to gain ground.” ~Thomas Jefferson

Ironically, America’s War on Terror has become a source of terror itself. Terrorism, as defined by Webster’s Dictionary, is “the systematic use of terror, especially as a means of coercion.”

It is a definition upon which much depends, considering that as of December 31st 2011 the United States government has codified into law the ability to indefinitely detain US citizens suspected of terrorist involvement without trial, a provision to the National Defense Authorization Act that gives US military the power to carry out domestic anti-terrorism operations on US soil .

This effectively means that, in theory, if the US government wanted me gone, I could be taken from my home via military force and detained indefinitely. Under the 2012 provision of the National Defense Authority Act, all they would have to do is call me a terrorist suspect — no proof needed, no rights enforced — and just like that, I could disappear. Legally.

President Obama admits to having “serious reservations with certain provisions that regulate the detention, interrogation and prosecution of suspected terrorists,” noting that the fact that he “supports this bill as a whole” does not mean that he “agrees with everything in it.” (Somehow that doesn’t make me feel any better.)

In the same statement, the president goes on to contradict direct lines from the controversial Act, assuring us that “administration [ …] will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law” (italics mine.) 

Apart from the fact that the president’s use of the word “interpret” acknowledges the room for flexible reading of the NDAA, and setting aside the fact that Mr. Obama has made other promises he did not keep — for instance, the termination of Guantanamo Bay  — his statement only applies to his administration.

As Senator Bernie Sanders asserts: “The legislation could give future presidents the authority to throw American citizens into prison for life without charges or a trial.”

I should note that Obama has made some effort to improve the controversial aspects of this bill, though the essential problems remain (see comments section.)

“In a country famous for the belief that one is innocent until proven guilty,” observes Alton Lu in the Huffington Post, “this is an upsetting change that is being foisted upon the American people with many unaware of what it means.” He continues:

“The Fourth Amendment grants liberty from unreasonable seizures, while the Sixth guarantees every U.S. citizen a trial in front of a jury. No matter what supporters of the bill might have said about the provisions being misunderstood, the simple fact is that it is unconstitutional.”

For an exhaustive yet readable breakdown of the NDAA, I recommend Glenn Greenwald’s article “Three Myths About the National Defense Authorization Act.”

The War on Terror has been bad news for civil liberties from the beginning, starting with Bush Jr.’s Patriot Act — which made it legal for the FBI to spy on Americans and search telephone, email, and financial records without a court order.

The Act also contained provisions allowing for the indefinite detention of any alien whom the Attorney General believed may cause a terrorist act. And now, with the new provisions added to the NDAA, this will apply to US citizens as well.

The very fact that I am able to criticize this new act, and post critical tongue-in-cheek pseudo-propaganda political cartoons is a testament to the America I cherish. I don’t want to lose that America.

Yet the fact that I am wondering if tags from this blog post could possibly land my name on some FBI worker’s hard drive is cause for serious concern.

Currently, the legal definition of a terrorist is defined by “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.” However:

“Controversy centers on the loose definition of key words in the bill,” relates The Guardian‘s Paul Harris. In particular, vague terms like “associated forces” have many wondering exactly what constitutes a terrorist tie. Harris notes that “civil rights experts have said the lack of precise definition leaves [the NDAA] open to massive potential abuse.”

Because of this, many fear the provision could extend to journalists, authors, peaceful activists and academics. For writer and political consultant, Naomi Wolf, fear of the NDAA’s vague wording has already effected her ability to do her job as a journalist:

“My understanding of the bill has forced me to decline to meet with certain newsworthy individuals, [to report] on facts and stories that I otherwise believe are newsworthy, and contribute to a healthy national discourse – for no other reason than to avoid potential repercussions under the bill.”

Among others, she sites declining to interview controversial internet activist Julian Assange of the international whistleblower site, Wiki-leaks, because of statements made by high-level United States officials regarding their views of Assange as a terrorist (Joe Biden has called him a “high-tech terrorist”.)

Unfortunately, America is not above guilt by association witch hunts.

My paternal grandparents were both blacklisted for a decade from working in Hollywood (which was their livelihood) during the McCarthy Era Red Scare, simply for running in a circle of actors and artists, some of whom had communist ties — though my grandparents themselves did not. The nail in the coffin happened when my grandmother, an activist and humanitarian, gave a speech for the Red Cross at a podium at which, hours later, a communist speech was delivered by a person totally unrelated to her.

Even though my grandfather, Eddie, was a war hero who had volunteered to serve his country, he and his wife, Margo, were interrogated by the House of Un-American Activities Committee (HUAC) and officially barred from working in Hollywood. Overnight they became unemployable pariahs. People became afraid to associate with them, lest they invite the same fate upon themselves, and like other blacklist victims, they became public faces for people’s fear: when the newly married couple stepped out of St. Patrick’s Cathedral on their wedding day, people spit on Margo’s white dress in the street.

They were forced to create a Vaudeville-style husband and wife act, performing in night clubs across the country until the ban was lifted, almost a decade later.

Witch hunts of a far more brutal caliber have happened, to be sure. Yet these people had done nothing wrong and they were put on Kafkaesque trial by the US government for no good reason. I’ve read the transcripts. They’re chilling: pummeled with leading questions and manipulative interrogations, suddenly held accountable for every casual comment they ever made and forced to justify their choices — in friends, in social clubs — to total strangers.

And that was before the information age.

How can America thrive when freedom — the very force that made her special — is vanishing one Patriot Act, one National Defense Authorization Act, at a time?

Then there’s the  anti-protesting law (officially, the Federal Restricted Buildings and Grounds Improvement Act of 2011) challenging Americans’ constitutional right to assembly, the freedom of the individual to come together and collectively express, promote, pursue and defend common interests. Up until now, the freedom to assemble has been recognized as a human right in America.

“The House of Representatives approved a bill that outlaws protests in instances where some government officials are nearby, whether or not you even know it […] That means disruptive activity, to whichever court has to consider it, will be a federal offense under the act.”  (Source)

This literally means that booing presidential candidates could land you in jail.

At least  SOPA — which would allow the government to effectively “shut down” websites — didn’t pass. Yet.

With acts like the NDAA and the anti-protest law passing, I’m frankly surprised.

The National Defense Authorization Act has been strongly opposed by the ACLU, Amnesty International, Human Rights First, Human Rights Watch, and The Center for Constitutional Rights.

To find out what you can do to fight for American liberty, and to discover coalitions in your area, visit The People’s Campaign for the Constitution (www.constitutioncampaign.org)

Stay informed and write your local representatives, urging them to take this incredibly important issue to the Supreme Court — which is our only hope at a repeal. As Forbes‘ Erik Kain notes: “people concerned with civil liberties should begin to walk away from the old left-right dichotomy entirely and focus on electing civil libertarians to congress.” If our civil liberties vanish, the social issues close to our hearts will become moot points.

Ironically, America’s War on Terror has become a source of terror itself.

As Erik Kain observes: “Each time we allow our fear to undermine our freedom we concede to the very terrorists we hope to defeat.” But fear is not the only obstacle; apathy, denial, self-absorption and laziness are our greatest enemies. In a country rich with unprecedented privilege, opportunity and freedom, we have frankly become complacent; even cocky. We feel that it will never touch us. But it already has. And, unchecked, the threat will only continue to advance, like a shadow across the land.

International readers, what does our situation look like from the outside? And what’s your situation like at home?

American readers, if you choose one issue to become active on this year, make it this one. Civil liberties are the bedrock of our nation. Without them, we lose everything.

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§ 18 Responses to America’s Vanishing Civil Liberties & The Controversy of Indefinite Detention

  • jonolan says:

    Actually, you’ve bought into a lie. The final version of the NDAA 2012 that Obama made political hay over with his signing statement include specific language that forbid all the problematical parts of it from being used anywhere on American Soil.

    All it really ended up doing was ex post facto making what was done to Awlaki officially legal – in the future at least.

    • Tai Carmen says:

      I don’t believe it’s accurate to say I have “bought into a lie” — I read the specific wording in the controversial sections. However if this has been altered, it’s news to me and I’ve been researching this up and down.

      I’d love to see links and sources to support this claim. I certainly hope you are right.

      • jonolan says:

        Go to http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.1540: and choose the 7th version (Enrolled Bill [Final as Passed Both House and Senate] – ENR)

        It got changed but nobody chose to report upon it beyond a few bloggers like myself.

      • Tai Carmen says:

        Phew! Jonolan. Just when I thought I was done with this post!🙂 I can see where you are coming from, but I think it’s more complicated.

        I don’t think it’s a matter so much of lies being bought into or perpetuated, but rather of extremely murky, obfuscated and often contradictory language used by political lawmakers.

        That being said, you’re indeed right that some provisions were added to the controversial sections in reaction to the public outcry.

        Because the subject is so dense and convoluted, I will address each new development/provision in turn. Let’s call that the [Extremely] Long Version of my response to your comment (but perhaps interesting for anyone who really wants to dig into this subject).

        For readers interested in the Short Version, it’s this: Yes some provisions have been added that say, essentially, that the bill should not be construed as superseding existing laws. And Obama gets points for attempting to lessen some of the controversial aspects of this bill (see Long Version for details). But in the end the bill still says the president has the option to detain US citizens militarily. They changed the word “requirement” to “option.” Really not too different.

        And the anti-protest law remains.

        Now, for the more in-depth response. (Quoting wiki here):

        Indefinite detention without trial: Section 1021

        “Addressing previous conflict with the Obama Administration regarding the wording of the Senate text, the Senate-House compromise text, in sub-section 1021(d), also affirms that nothing in the Act “is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”

        My comment: Well, you know what they say: the road to hell is paved with good intentions. To me, this doesn’t really change much. Basically, it’s the same thing Obama already said, essentially “Sure, it says I have this authority. But I would never use it.”

        “The final version of the bill also provides, in sub-section (e), that ‘Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.’ As reflected in Senate debate over the bill, there is a great deal of controversy over the status of existing law.

        My Comment: This is the main development. And on its own, it does limit power. So that is promising. However, rather than eradicating other problematic language it simply tacks on a section of “balancing” (some might say contradictory) language. Better than nothing, but not quite as good as striking the controversial sections out entirely.

        Requirement for military custody: Section 1022

        “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 law affords the option to have U.S. citizens detained by the armed forces but this requirement does not extend to them, as with foreign persons. 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.”

        My comment:
        This is exactly the kind of language that contradicts the earlier appeasing language in section (e) (“Nothing in this law should be construed to affect existing law…”). So the law affords the option to detain US citizens with military force on terrorist charges. It’s just not required. Is that really any better? Not in my opinion. If I told you I had the option to kill you, sure, that would be better than if I said I was “required” to kill you…but it doesn’t exactly make you feel warm and fuzzy and safe, does it?

        “ The White House threatened to veto the Senate version of the Act,[9] arguing in an executive statement on 17 November 2011 that while “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… (and) Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.

        “The statement furthermore objected to the mandate for “military custody for a certain class of terrorism suspects,” which it called inconsistent with “the fundamental American principle that our military does not patrol our streets.”[9] The White House may now waive the requirement for military custody for some detainees following a review by appointed officials including the Attorney General, the secretaries of state, defense and homeland security, the chairman of the military’s Joint Chiefs of Staff and the director of national intelligence.[26]

        My comment: Back to the “option vs requirement” issue. Still not really that different. It’s cool that the Obama administration objected to the controversial sections, but let’s be honest, it makes them look good to do so. Even assuming they are coming from a pure and righteous place…in the end all it got US citizens in question is the possibility, rather than the certainty, of being detained.

        “The Senate later adopted by a 98 to 1 vote a compromise amendment, based upon a proposal by Senator Dianne Feinstein, which preserves current law concerning U.S. citizens and lawful resident aliens detained within the United States. [30] After a Senate-House compromise text explicitly ruled out any limitation of the President’s authorities, but also 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.

        My comment: More of the same. Option vs requirement. Plus, it would seem that the president still has executive authority to do what he pleases with detainees.

        While Senator Feinstein and others have argued that current law does not allow the indefinite detention of American citizens, the Obama Administration, Senators Carl Levin and John McCain have argued that it may still allow it

        My comment: Okay, so I’m happy to see Obama actually arguing against this bill (though let’s not forget we’re rapidly approaching re-election time, and considering the public outcry on this, it would be completely logical and diplomatic for him to voice this kind of objection).

        The argument that there is room for interpretation within the bill’s language is fortified by the fact that the president himself publicly disagreed with Feinstein’s assertion that the law does not allow for indefinite detention of US citizens…

        ***

        Let’s look more closely at the current version of the bill in question:

        SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

        (a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
        (b) Covered Persons. A covered person under this section is any person as follows:

        (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

        (2) A person who 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.
        (c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:

        (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

        (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

        (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

        (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

        (d) Construction-Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

        (e) Authorities-Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

        (f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons’ for purposes of subsection (b)(2).

        My Comment:
        So, we can see there is a nice provision here ((e)”Nothing in this section shall be construed to affect existing law”). As mentioned earlier, apparently the “existing laws” are themselves subject to some controversy, but let’s leave that for now.

        Yet as we can see in section (a) congress specifically affirms the president’s authority to use military source on “covered persons,” the definition of which includes “any person who has committed a belligerent act.”

        That language is still pretty vague if you ask me. This blog post could be considered belligerent!

        And what of the fact that notable and celebrated intellectuals such as Naom Chompsky (among others, including Pulitzer Prize winner Chris Hedges) are suing Obama in protest:

        “The plaintiffs share common narrative that their constitutionally protected work, either in activism or in journalism will be chilled by the over-broad provisions set forth under the NDAA. ”

        ‘I have had dinner more times than I can count with people whom this country brands as terrorists. But that does not make me one,” said Hedges ”if there is no rolling back of the NDAA law we cease to be a constitutional democracy. Totalitarian systems always begin by rewriting the law. They make legal what was once illegal.’

        He continued, ‘Crimes become patriotic acts. The defense of freedom and truth becomes a crime. Foreign and domestic subjugation merges into the same brutal mechanism. And it is always done in the name of national security. We obey the new laws as we obeyed the old laws, as if there was no difference. And we spend our energy and our lives appealing to a dead system.’

        ‘The Homeland Battlefield Law [aka NDAA] is as Orwellian as its name implies. America is not a ‘battlefield;’ it is a democratic republic. This law is unconstitutional because it violates the free speech and due process rights of American citizens’ says Carl Mayer, lead attorney on the case.” (http://www.sparrowmedia.net/2012/03/ndaa-lawsuit-hedges-v-obama/)

        A key phrase that also has the plaintiffs of Hedges vs Obama worried:

        Section 1021 (b)(2) allows the military to detain anyone it suspects “substantially supported” al-Qaida, the Taliban or “associated forces,” and to keep them detained until “the end of hostilities.”

        Hedges and others claim those words are so vague they could justify indefinite detention of political dissidents without due process.

        My comment: What if something I write critiquing American policies suddenly — through no desire or intention on my part — becomes a big hit with Islamic Extremists. Just for the sake of argument. Suddenly they are reposting, inspired by my words. I wasn’t intending the critique to ignite them, yet, somehow, it does. Suddenly, under the current phrasing, I could very well be viewed as having “aided” terrorists. Yes, it’s a long shot, but it is not 100 % impossible.

        The example below from one of the plaintiffs in Hedges vs Obama illustrates this point perfectly:

        The first plaintiff to testify, Alexa O’Brien, co-founded the U.S. Day of Rage, a group whose “one purpose,” she said, is to “reform our corrupt elections.” Though its website lists “nonviolence” as its founding principle, O’Brien said she found out that agents of a private intelligence firm tried to link U.S. Day of Rage to Islamic fundamentalists. “I became, essentially, a liability,” O’Brien said.

        She said the company’s director of government contracts, a family friend, told her candidly that “contacts of the government” had approached him about her.
        O’Brien said she tried to explain that she knew that U.S. Day of Rage was being monitored, but her boss said the problem was not only with her association.
        “No, Alexa, you,” he said, according to O’Brien. “Multiple times, multiple individuals.”
        Now an independent journalist, O’Brien testified that she shelved two investigations about Guantanamo detainees for fear of reprisal under the National Defense Authorization Act (NDAA).

        So while provisions have been added — and I’ll make the appropriate note on the post — concerns remain.

        Thanks for being part of the conversation.🙂

        TC

  • Dottie Meakins says:

    This is a very moving emotional blog. I have invested my life in my country, and my parents came here from Germany to escape the torture. When I read about Margo and Eddie Albert, I just sobbed in tears, not just for this innocent couple, but for the simple minded country I live in, the country who blacklisted them because they thought it was the right thing to do.
    I find myself so conflicted with what we are facing today, and not one of us is immune from this same treatment.
    Study, learn, pay attention, keep reading this blog. This is your country, my country. Lets not give up our say!
    Please Tai Carmen, keep us all as informed as only you can, you speak from first hand knowledge, but you are well informed, as many of us are not, we may just have to depend on you.
    Thank you Tai Carmen for this wonderful, and informational blog!

    • Tai Carmen says:

      Thank you!🙂

      As is clear from our friend’s comment above, the issue is extremely convoluted. I will do my best to report the facts as I find them.

      On on!
      TC

  • REFLECTIONS says:

    Extremely worrisome.
    Thank you for the information.
    Please keep us updated.

  • batgurrl says:

    Tai – thank you for this very informative post. What worries most is not what Obama might do with this law. Yes he has the discretion to use it. But what about the next president? Will he/she be so prudent in protecting our rights? What happens when Corporations continue to influence the political realm? Will they push to have those that stand out against their agenda arrested?

    This takes us down the rabbit hole of what ifs? But more important is this the land of the free and brave we want it to be? or we were raised to believe in?

    Robin

    • Tai Carmen says:

      It definitely seems like a formative time of transition for our country…where certain choices will affect the future greatly. I agree that I’m not particularly worried about how the current administration uses it. But Obama himself has said the provisions concern him…what of future presidents?

      As frustrating and overwhelming as politics can be (speaking for myself personally) it seems like with laws like these flying around it’s especially important to keep oneself informed.

      Thanks for being part of the conversation.🙂

  • Tim says:

    Thanks for including this message Tai. It departs from your usual spiritual, psychological, and cultural subject matter, but it needs to be said. Several real “patriots” beat this drum in December of 2011, and many people ignored or condemned the outcry of the droves of dissenters. The dichotomies of old should be discarded. They limit our ability to expand our consciousness and live freely. The bipartisan system has consistently removed the freedom of The People, expanded the powers of The Elite, and spilled the blood of soldiers and citizens across the globe. Both Democrats and Republicans have nodded their heads at this wholesale rape of liberty. As long as the spectators have a political gladiator to get behind, they ignore the horrific actions of their heroes. Black and White are not the only colors in the world. Nor are Red and Blue the only ways to think. A beautiful dream was born in 1776. ALL our contemporary leaders have legislated, adjudicated, or decreed those freedoms away. It’s time for positive change and expansion beyond our kiddish ideals. Our present childhood must end.

    • Tai Carmen says:

      Well said. I could not agree more about moving beyond bipartisanship. It only keeps us divided. The black and white system just doesn’t represent the multi-colored truth — for many of us, anyway. And the spin doctors love to hype everything up into a war. Both parties demonize one another until the issues become almost entirely obscured.

      I normally like to think of Parallax as a haven free of political strife, a respite from that kind of thing; a refueling of dreams. But it did seem important and I figured it applies to the dreamer-outsider, because, today’s dissenter could be tomorrow’s target. It’s happened before. But it was a departure — and I am usually loathe to speak of politics.🙂

      So thanks for your kind words, and for being part of the conversation.

      On on!

      TC

  • washek2010 says:

    Hello again!

    I commend you for writing this post.
    When freedom of speech is threatened.
    And truth (as in what’s really going on this world) is deliberately obstructed…we know there’s something majorly wrong.
    It’s all smoke and mirrors, that’s for sure. Thing is, many of us know it. And they know we know it too.

  • Robert C says:

    Great work. If you have not already you should check out some of Glen Greenwald’s recent work–on salon and around the net. He is great. You do great serious and creative work! I once read about your father taking care of your grandfather(big fan) while he himself was ill and was quite touched by his effot. Your decency and courage comes through here as well. Looking forward to your next post!

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