Soft On Terror, Or Hard On The Constitution?

This Hub follows the story of the National Defense Authorization Act 2012, which I call the "Battlefield USA" Act. The NDAA appears to fatally undercut basic civil rights, including the fundamental principle of "habeus corpus," established in English law since long before the existence of the USA. The Hub also notes other legislation which may tend to have similar effects, such as the so-called "Federal Restricted Buildings and Grounds Improvement Act of 2011."

The most recent update or updates are posted at the top of the page; the older posts are in chronological order beginning with the "Original Post" further down the page. All updates are labeled and dated.

The "Battlefield USA" Act is receding into history, as 2012 is more than halfway through, and the National Defense Act 2013 is working its way through the legislative process. But NDLA 2013 bears the marks of the controversy around its predecessor. Congress has seen fit to include three sections--1031, 1032, and 1033--clarifying the matter of habeus corpus rights and indefinite detention. The language is reassuring:

(a) Rule of Construction- Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights.

(b) Notification of Detention of Persons Under Authorization for Use of Military Force- Not later than 48 hours after the date on which a person who is lawfully in the United States is detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note), the President shall notify Congress of the detention of such person.

(c) Habeas Applications- A person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) shall be allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody.

One hopes that this will be more than a mere fig leaf.

I don't normally write on topical issues; Hubpages is a place for "evergreen content," not momentary, passing concerns. But every rule has exceptions, and this is one.

Last night at work, a co-worker asked me, "Did you hear? The Senate passed a law today that would let the military take any American citizen off the street and hold them indefinitely without trial!"

I was highly skeptical. "I can't imagine that even if that's true," I said, "that such a bill would either pass the House or be signed by the President. Due process still means something in this country."

How could I have failed to hear about such a fundamental threat to the Constitution, if this were really true? Indefinite detention without trial would amount to a classical "Star Chamber," immune to all judicial oversight, all right of appeal. It would be wide open to abuse.

And after all, I reasoned, such things were at the root of some of the tenderest Colonial grievances with the government of His Majesty King George III. Those grievances inspired the Constitutional protections that have historically made the US a beacon of freedom to much of the world. So this morning I got on Snopes.com, fully expecting to find another urban myth in full flight.

Well, he wasn't as far wrong as I imagined. Yesterday's vote wasn't quite to authorize indefinite detention of Americans in the US, and specifically to empower the military to be the ones to do the detective work. It was "merely" on an amendment which would have stripped the language doing that out of the larger "National Defense Authorization" bill.

Needless to say, a defense spending authorization bill will HAVE to be passed, with two (or at least one-and-a-half) wars on--so the question of whether that language is in or out of the bill is crucial.

[Originally, I wrote: "I was right about one thing, at least--the White House has said that the Authorization Bill, should it pass in its current form, WILL be vetoed." But see below for what actually happened.]

The GOP--or much of its brain trust, at least--is said to welcome such a prospect because it will allow them to paint President Obama as 'anti-military' and 'soft on terror.'

Better that, I would argue, than 'hard on the constitution.'

This may, by the way, be the first time I actually agree with Rand Paul on something. But it's not just me; it's also the Directors of the FBI and National Intelligence, who have said that this measure, far from helping security, may actually disrupt their ability to investigate terror threats.

If you agree, I'd suggest you say so now. The latest news update (on Huffington Post) expects the NDA Act to pass Congress by the weekend.

Hey, they want to get home for the holidays.

If you do want to contact your local Congresscritter, you can do so via the "Open Congress" link in the links section below. I just did so.

The NDA has passed the Senate with the "Battlefield USA" language intact, efforts by Senator Diane Feinstein to amend it having failed--I think. The legislation will have to be reconciled with the House version (which also includes some provisions for indefinite detention.) And this sets up a confrontation with the White House--which will at least trigger some more extensive media coverage. It remains to be seen whether the public will see that eliminating Constitutional protections for suspected "Al Qaeda supporters" amounts to eliminating Constitutional protections for everybody.

Accusations, after all, are cheap--and could be awfully convenient for all sorts of people, from angry neighbours to corporate wrong-doers bent on covering up to over-zealous or misguided intelligence officials to politicians attempting to suppress dissent.

The Huffington Post, which has probably been the most consistent organization to report on this issue, says that "The legislation also would deny suspected terrorists, even U.S. citizens seized within the nation's borders, the right to trial and subject them to indefinite detention."

The HP report says there is an exemption or American citizens, though. For them, detention is not required to be by the military--they could be held by civilian authorities, like the CIA.

Boy, that's a relief.

Senator Feinstein did manage an amendment which thoroughly muddies the waters. According to an earlier HP story, "The new amendment specifies that the current practices may not change, although it also says explicitly that the military can pursue Americans at home." Senator Durbin of Illinois, an opponent of indefinite detention, saw this as forcing the question to the Supreme Court.

Perhaps. And perhaps my initial reaction, that "no imaginable Supreme Court" would uphold indefinite detention, will be proven correct.

Perhaps.

Stay tuned.

Congress has done some sort of reconciliation process, and Senators Levin and McCain, who sponsored the Senate version have been out politicking for their baby. They feel that they have answered the concerns about their power-grab--er, "legislation."

Others see it quite differently. Mother Jones Magazine said:

By making addressing the security concerns, but not the ones related to civil liberties and the rule of law, Congress is basically asking the administration how serious it was when it said in its Statement of Administration Policy that the detention provisions in the NDAA would be "inconsistent with the fundamental American principle that our military does not patrol our streets." Obama has said before that the choice between security and American ideals is a false one, but in practice the administration has erred on the side of security and secrecy. With Congress having given the administration "security," we will now see whether the administration thinks those American ideals are just as worth fighting for.

On the right, the New American was equally pointed:

Constitutionalists are urging that the time is now for concerned citizens of the United States to contact their federal representatives and let them know that they will hold them accountable for their vote on this absolute abolition of the rule of law.

It still remains to be seen whether the Administration will hold firm in defense of the Constitution. One may wonder, given that their expressed objections have been more oriented to security issues.

Still, one can hope. After all, the President used to teach Constitutional law.

Well, so much for fond hopes. Late today, December 14, the White House announced that the President's advisors would not recommend a veto of this 'must-pass' legislation, saying that the Administration's concerns had been adequately addressed.

Of course, those concerns do not include civil rights. Only a few die-hards in Washington seem to care about that any more.

So, this is a done deal. Now for the court challenges. . . the ACLU can be your friend.

Is it a farce or a tragedy?

At any rate, President Obama signed the NDAA into law on New Year's Eve, accompanied by a signing statement.

Bring on the court challenges.

Above, I wrote "Bring on the court challenges." As of the 17th of this month, the first such suit arrived, courtesy of reporter Chris Hedges and his pair of crusading attorneys. And the object of that suit?

Mr. Hedges is suing the President in connection with the indefinite detention provisions, according to a story that inexplicably failed to get much traction in the mainstream press. He evidently feels a personal dimension in the NDAA's threat to civil liberties:

As an international correspondent and world-renowned journalist, Hedges has traveled the globe and says he has been put in some hairy situations. Under the NDAA, he says, he might as well be considered a war criminal in the eyes of America.

Under NDAA, the military can enforce indefinite detention on anyone “who was a part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States.” As Hedges and others point out, groups such as “associated forces” are never defined, nor are determinations like “substantially supported.”

“I have had dinner more times than I can count with people whom this country brands as terrorists,” writes Hedges.“But that does not make me one.”

Regardless, any affiliation with a group branded as such could lead authorities to leap to such conclusions.

Mr. Hedges goes on to suggest that the motive for enactment of the NDAA is that corporate interests fear increasing unrest in the style of--or more violent than--the "Occupy" movements, and don't trust police to protect them. "They want to be able to call in the Army--and now they can."

Personally, I don't quite believe it; while the influence of corporate money on the political process is a matter of public record in a good many ways, I haven't seen anything so far that suggests that the PR guys actually get to write the legislation.

But whether or not we give credence to such theories, the fact remains that from a legal point of view, NDAA opens up huge loopholes in the basic protections that Americans--and for that matter, every human affected by American law, whether citizen, resident or visitor--have long enjoyed. For that reason alone, I wish Mr. Hedges luck. When you sue a sitting President, you need it.

Maybe Republicans have a point about big government being a threat to freedom in American--because it kind of looked that way to me, when I found out that they joined with Democrats to pass a new law which appears to enact sweeping restrictions on the First Amendment Right of peaceable assembly. As reported on the website rt.com:

The US House of Representatives voted 388-to-3 in favor of H.R. 347 late Monday, a bill which is being dubbed the Federal Restricted Buildings and Grounds Improvement Act of 2011.

H.R. 347 was passed by the Senate with little fanfare back on February 6, so it will likely be headed for President Obama's desk next. (It is not clear whether the two versions of the bill need to be reconciled.) It's meant to be an update "To correct and simplify the drafting of section 1752 (relating to restricted buildings or grounds) of title 18, United States Code."

Without recapping the entire bill, this egregious legislation would criminalize entry to a restricted "building without permission or with the intent to disrupt a government function with a federal offense if Secret Service is on the scene." That in itself doesn't sound too unreasonable. But the kickers come in the definitions.

First, restricted buildings (and grounds) can include any site in which a person protected by the Secret Service may be visiting--even if this is not public knowledge. Persons receiving such protection may include not only the President and Vice President, but Presidential candidates, family members, and various dignitaries such as foreign heads of state.

Also covered by the act are "National Special Security Events." Many Americans have not yet heard this term, but:

...while presidential inaugurations and meeting of foreign dignitaries are awarded the title, nearly three dozen events in all have been considered a National Special Security Event (NSSE) since the term was created under President Clinton. Among past events on the DHS-sanctioned NSSE list are Super Bowl XXXVI, the funerals of Ronald Reagan and Gerald Ford, most State of the Union addresses and the 2008 Democratic and Republican National Conventions.

Moreover, it's not just entry to specified places which is criminalized. Also prohibited are:

1. disrupting the orderly conduct of “official functions,”
2. engaging in disorderly conduct “within such proximity to” the event, or
3. acting violent to anyone, anywhere near the premises.

I certainly don't want to defend violent behavior, but it's already illegal, of course--generally, we call it "assault." Is it really necessary to pile on more legal jeopardy? And would even this least-egregious of the provisions create more potential for abusive prosecutions? It's not difficult to imagine minor 'resistance to arrest' in the over-heated context of a political protest being construed as 'violent behavior.' Disorderly conduct is still less well-defined, and isn't disruption the whole purpose of political protest? But perhaps most troubling is the geographical extension--also not well-defined, it would appear--implied by those three little words "within such proximity."

Also covered are "attempts" to do any of the above, and "conspiring" to do any of the above. Would this imply that if, say, a Tea Party member protesting at the Democratic National Convention--it will be a National Special Security Event--makes a gesture (mis)-interpreted as violent by a nervous police officer, protest organizers could be on the hook for conspiracy under this law? Or similarly for a pro-choice activist picketing the RNC? An "Occupy..." demonstration down the block from an appearance by Rick Santorum (who has applied for Secret Service protection?)

Penalties under the law? Glad you asked. An unspecified fine--it must be defined in Section 1752, Title 18, which this law is 'cleaning up'--or up to a year in prison. It's up to ten years if you are carrying a "dangerous weapon," or if someone gets hurt.

An amendment to repeal the provisions of the NDAA most obnoxious to civil rights has been referred to committee in the House of Representatives. Although it is not clear that this bill will be able to advance--its co-sponsors include only one Republican, so formally at least it is very much a minority project at present--it is a least a visible sign that Congressional disquiet with the NDAA continues to bubble.

As detailed in the linked story, the bill was sponsored by Representatives Smith and Udall.

An NDAA story I missed initially was the hearing held at the end of March; a number of plaintiffs sued the Obama Administration over the NDAA's possible effects on civil liberties. Naomi Wolf posted her illuminating notes, taken at the hearing. They are well worth reading, though they require some persistence, as any 'raw' notes are apt to do. The term 'support' (as in "support for terrorists") is certainly shown to have no concrete definition under the law, and therefore the limits on potential prosecutions under the law seem troublingly minimal.

Also, the European Union Times had a nice story summarizing some of the legal and Congressional responses on March 31st--which raises the question why American sources aren't doing a better job of providing information on this issue.

State legislatures, including Virginia, Arizona and Hawaii, have been pushing back against the "Battlefield USA Act." It's interesting to observe the diversity of opposition to the NDAA; some are hardcore Tea Party types who concentrate nearly all of their ire against the NDAA on President Obama (ignoring the heavy Republican support for the NDAA in Congress), while some are definitely on the left (such as the ACLU.)

Here are several links giving a 'snap-shot' of these events. (Again, as has been true throughout the NDAA affair, it's rather surprising how little mainstream coverage any of this is getting.) Included is a link to a Washington Post op-ed piece attacking Virginia's law and defending NDAA 2011. I don't agree with it, but it's worthwhile considering the arguments made. The comments posted in response to it are well worth your time as well.