U.S. Military ‘Power Grab’ Goes Into Effect

“It’s quite shocking actually because it violates the long-standing presumption that the military is under civilian control.”

Pentagon Unilaterally Grants Itself Authority Over ‘Civil Disturbances’

By Jed Morey
Twitter: @jedmorey

This column originally appeared on www.LongIslandPress.com

The manhunt for the Boston Marathon bombing suspects offered the nation a window into the stunning military-style capabilities of our local law enforcement agencies. For the past 30 years, police departments throughout the United States have benefitted from the government’s largesse in the form of military weaponry and training, incentives offered in the ongoing “War on Drugs.” For the average citizen watching events such as the intense pursuit of the Tsarnaev brothers on television, it would be difficult to discern between fully outfitted police SWAT teams and the military.

The lines blurred even further Monday as a new dynamic was introduced to the militarization of domestic law enforcement. By making a few subtle changes to a regulation in the U.S. Code titled “Defense Support of Civilian Law Enforcement Agencies” the military has quietly granted itself the ability to police the streets without obtaining prior local or state consent, upending a precedent that has been in place for more than two centuries.

Click here to read the new rule

The most objectionable aspect of the regulatory change is the inclusion of vague language that permits military intervention in the event of “civil disturbances.” According to the rule:

Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.

Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, calls the rule, “a wanton power grab by the military,” and says, “It’s quite shocking actually because it violates the long-standing presumption that the military is under civilian control.”

A defense official who declined to be named takes a different view of the rule, claiming, “The authorization has been around over 100 years; it’s not a new authority. It’s been there but it hasn’t been exercised. This is a carryover of domestic policy.” Moreover, he insists the Pentagon doesn’t “want to get involved in civilian law enforcement. It’s one of those red lines that the military hasn’t signed up for.” Nevertheless, he says, “every person in the military swears an oath of allegiance to the Constitution of the United States to defend that Constitution against all enemies foreign and domestic.”

One of the more disturbing aspects of the new procedures that govern military command on the ground in the event of a civil disturbance relates to authority. Not only does it fail to define what circumstances would be so severe that the president’s authorization is “impossible,” it grants full presidential authority to “Federal military commanders.” According to the defense official, a commander is defined as follows: “Somebody who’s in the position of command, has the title commander. And most of the time they are centrally selected by a board, they’ve gone through additional schooling to exercise command authority.”

As it is written, this “commander” has the same power to authorize military force as the president in the event the president is somehow unable to access a telephone. (The rule doesn’t address the statutory chain of authority that already exists in the event a sitting president is unavailable.) In doing so, this commander must exercise judgment in determining what constitutes, “wanton destruction of property,” “adequate protection for Federal property,” “domestic violence,” or “conspiracy that hinders the execution of State or Federal law,” as these are the circumstances that might be considered an “emergency.”

“These phrases don’t have any legal meaning,” says Afran. “It’s no different than the emergency powers clause in the Weimar constitution [of the German Reich]. It’s a grant of emergency power to the military to rule over parts of the country at their own discretion.”

Afran also expresses apprehension over the government’s authority “to engage temporarily in activities necessary to quell large-scale disturbances.”

“Governments never like to give up power when they get it,” says Afran. “They still think after twelve years they can get intelligence out of people in Guantanamo. Temporary is in the eye of the beholder. That’s why in statutes we have definitions. All of these statutes have one thing in common and that is that they have no definitions. How long is temporary? There’s none here. The definitions are absurdly broad.”

The U.S. military is prohibited from intervening in domestic affairs except where provided under Article IV of the Constitution in cases of domestic violence that threaten the government of a state or the application of federal law. This provision was further clarified both by the Insurrection Act of 1807 and a post-Reconstruction law known as the Posse Comitatus Act of 1878 (PCA). The Insurrection Act specifies the circumstances under which the president may convene the armed forces to suppress an insurrection against any state or the federal government. Furthermore, where an individual state is concerned, consent of the governor must be obtained prior to the deployment of troops. The PCA—passed in response to federal troops that enforced local laws and oversaw elections during Reconstruction—made unauthorized employment of federal troops a punishable offense, thereby giving teeth to the Insurrection Act.

Together, these laws limit executive authority over domestic military action. Yet Monday’s official regulatory changes issued unilaterally by the Department of Defense is a game-changer.

The stated purpose of the updated rule is “support in Accordance With the Posse Comitatus Act,” but in reality it undermines the Insurrection Act and PCA in significant and alarming ways. The most substantial change is the notion of “civil disturbance” as one of the few “domestic emergencies” that would allow for the deployment of military assets on American soil.

To wit, the relatively few instances that federal troops have been deployed for domestic support have produced a wide range of results. Situations have included responding to natural disasters and protecting demonstrators during the Civil Rights era to, disastrously, the Kent State student massacre and the 1973 occupation of Wounded Knee.

Michael German, senior policy counsel to the American Civil Liberties Union (ACLU), noted in a 2009 Daily Kos article that, “there is no doubt that the military is very good at many things. But recent history shows that restraint in their new-found domestic role is not one of them.”

At the time German was referring to the military’s expanded surveillance techniques and hostile interventions related to border control and the War on Drugs. And in fact, many have argued that these actions have already upended the PCA in a significant way. Even before this most recent rule change, the ACLU was vocal in its opposition to the Department of Defense (DoD) request to expand domestic military authority “in the event of chemical, biological, radiological, nuclear, or high yield explosive (CBRNE) incidents.” The ACLU’s position is that civilian agencies are more than equipped to handle such emergencies since 9/11. (ACLU spokespersons in Washington D.C. declined, however, to be interviewed for this story.)

But while outcomes of military interventions have varied, the protocol by which the president works cooperatively with state governments has remained the same. The president is only allowed to deploy troops to a state upon request of its governor. Even then, the military—specifically the National Guard—is there to provide support for local law enforcement and is prohibited from engaging in any activities that are outside of this scope, such as the power to arrest.

Eric Freedman, a constitutional law professor from Hofstra University, also calls the ruling “an unauthorized power grab.” According to Freedman, “The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute.” Yet that’s precisely what it did. This wasn’t, however, the Pentagon’s first attempt to expand its authority domestically in the last decade.

Déjà vu

During the Bush Administration, Congress passed the 2007 Defense Authorization Bill that included language similar in scope to the current regulatory change. It specifically amended the Insurrection Act to expand the president’s ability to deploy troops domestically under certain conditions including health epidemics, natural disasters and terrorist activities, though it stopped short of including civil disturbances. But the following year this language was repealed under the National Defense Authorization Act of 2008 via a bill authored by Vermont Senator Patrick Leahy (D-VT) who cited the “useful friction” between the Insurrection and Posse Comitatus Acts in limiting executive authority.

According to the DoD, the repeal of this language had more to do with procedure and that it was never supposed to amend the Insurrection Act. “When it was actually passed,” says the defense official, “Congress elected to amend the Insurrection Act and put things in the Insurrection Act that were not insurrection, like the support for disasters and emergencies and endemic influenza. Our intent,” he says, “was to give the president and the secretary access to the reserve components. It includes the National Guard and, rightfully so, the governors were pretty upset because they were not consulted.”

Senator Leahy’s office did not have a statement as of press time, but a spokesperson said the senator had made an inquiry with the DoD in response to our questions. The defense official confirmed that he was indeed being called in to discuss the senator’s concerns in a meeting scheduled for today. But he downplayed any concern, saying, “Congress at any time can say ‘we don’t like your interpretation of that law and how you’ve interpreted it in making policy’—and so they can call us to the Hill and ask us to justify why we’re doing something.”

Last year, Bruce Afran and another civil liberties attorney Carl Mayer filed a lawsuit against the Obama Administration on behalf of a group of journalists and activists lead by former New York Times journalist Chris Hedges. They filed suit over the inclusion of a bill in the NDAA 2012 that, according to the plaintiffs, expanded executive authority over domestic affairs by unilaterally granting the executive branch to indefinitely detain U.S. citizens without due process. The case has garnered international attention and invited vigorous defense from the Obama Administration. Even Afran goes so far as to say this current rule change is, “another NDAA. It’s even worse, to be honest.”

For Hedges and the other plaintiffs, including Pentagon Papers whistleblower Daniel Ellsberg, the government’s ever-expanding authority over civilian affairs has a “chilling effect” on First Amendment activities such as free speech and the right to assemble. First District Court Judge Katherine Forrest agreed with the plaintiffs and handed Hedges et al a resounding victory prompting the Department of Justice to immediately file an injunction and an appeal. The appellate court is expected to rule on the matter within the next few months.

Another of the plaintiffs in the Hedges suit is Alexa O’Brien, a journalist and organizer who joined the lawsuit after she discovered a Wikileaks cable showing government officials attempting to link her efforts to terrorist activities. For activists such as O’Brien, the new DoD regulatory change is frightening because it creates, “an environment of fear when people cannot associate with one another.” Like Afran and Freedman, she too calls the move, “another grab for power under the rubric of the war on terror, to the detriment of citizens.”

“This is a complete erosion of the rule of law,” says O’Brien. Knowing these sweeping powers were granted under a rule change and not by Congress is even more harrowing to activists. “That anything can be made legal,” says O’Brien, “is fundamentally antithetical to good governance.”

As far as what might qualify as a civil disturbance, Afran notes, “In the Sixties all of the Vietnam protests would meet this description. We saw Kent State. This would legalize Kent State.”

But the focus on the DoD regulatory change obscures the creeping militarization that has already occurred in police departments across the nation. Even prior to the NDAA lawsuit, journalist Chris Hedges was critical of domestic law enforcement agencies saying, “The widening use of militarized police units effectively nullifies the Posse Comitatus Act of 1878.”

This de facto nullification isn’t lost on the DoD.

The DoD official even referred to the Boston bombing suspects manhunt saying, “Like most major police departments, if you didn’t know they were a police department you would think they were the military.” According to this official there has purposely been a “large transfer of technology so that the military doesn’t have to get involved.” Moreover, he says the military has learned from past events, such as the siege at Waco, where ATF officials mishandled military equipment. “We have transferred the technology so we don’t have to loan it,” he states.

But if the transfer of military training and technology has been so thorough, it boggles the imagination as to what kind of disturbance would be so overwhelming that it would require the suspension of centuries-old law and precedent to grant military complete authority on the ground. The DoD official admits not being able to “envision that happening,” adding, “but I’m not a Hollywood screenwriter.”

Afran, for one, isn’t buying the logic. For him, the distinction is simple.

“Remember, the police operate under civilian control,” he says. “They are used to thinking in a civilian way so the comparison that they may have some assault weapons doesn’t change this in any way. And they can be removed from power. You can’t remove the military from power.”

Despite protestations from figures such as Afran and O’Brien and past admonitions from groups like the ACLU, for the first time in our history the military has granted itself authority to quell a civil disturbance. Changing this rule now requires congressional or judicial intervention.

“This is where journalism comes in,” says Freedman. “Calling attention to an unauthorized power grab in the hope that it embarrasses the administration.”

Afran is considering amending his NDAA complaint currently in front of the court to include this regulatory change.

As we witnessed during the Boston bombing manhunt, it’s already difficult to discern between military and police. In the future it might be impossible, because there may be no difference.

 

 

Photo: U.S. Troops in Afghanistan (Photo: Senior Airman Sean Martin, U.S. Air Force)

HANG THE JURY

If a juror believes a defendant is guilty of breaking the law, but believes also that the law itself is not just, she has the right to vote with her conscience and not with the law.

A single juror has the ability to acquit a defendant in a trial for any reason. Even if the juror believes the defendant is guilty. This is called jury nullification. This is not a loophole. Nor is it illegal. But it’s a secret and it shouldn’t be.

With that said, let’s begin.

A cursory review of prison statistics illustrates the nightmare that is African Americans’ experience with our criminal “justice” system. There are currently more than 7 million Americans caught up at some point in the prison system between probation, incarceration and parole. Incredibly, 40 percent of our prisoners are black even though African Americans comprise only 13 percent of the total U.S. population. I live in a state where that number is closer to 50 percent. All told, America has 25 percent of the world’s incarcerated population despite only having 5 percent of the world’s population. This makes the sheer number of blacks in the prison system today even more overwhelming.

If you think there’s something wrong with this picture, continue reading, as there’s something that you can do about it. If you think this is because black people commit crime at a higher rate than white people do, then there’s a special place for you in hell or, worse, Congress.

Half of the prisoners in the United States are serving time for non-violent drug-related charges and 80 percent of those charges are for possession. Advocates and activists throughout the nation are attempting to reverse this trend, as the mass incarceration of black men specifically has become an epidemic. Despite the best efforts of groups such as the NAACP and the ACLU to reverse the trend, the problem persists unabated with most feeling helpless to change the system in a meaningful way.

But something can be done. By understanding your rights as a citizen to participate in the legal system, change can occur. Simply performing a civic obligation and reporting for jury duty gives every American the ability to weigh in on this issue.

Few people who are arrested on drug possession charges ever make it to trial for two reasons. One is that most cases are settled with a plea deal that a defendant often learns of for the first time while standing in front of a judge. The court-appointed attorney is basically there just to explain the plea to the defendant. The second reason is that plea deals are often considerably more attractive than the potential of losing in a trial and being sentenced by a judge, who is obligated to hand down sentences in strict accordance with the law. In states with mandatory minimum sentencing requirements, the risks are enormous.

But for those rare cases that do make it to trial, most people would be surprised to know that the most powerful person in the room is not an attorney or even the judge, for that matter. It’s the juror. One dissenting juror has the ability to decide whether or not a defendant should be set free no matter how the facts are presented. If a juror believes a defendant is guilty of breaking the law, but believes also that the law itself is not just, she has the right to vote with her conscience and not with the law.

Whether or not a judge has an obligation to inform a jury of this right has been battled over for two and a half centuries. As it stands now, judges are not required to inform a jury of their right to nullify a verdict; therefore, most do not.

Intrigued? Incredulous? Inspired? If you are brave enough to defy injustice and provide the last line of sane defense in an insane world, it’s best to arm yourself with an understanding of how we arrived at this point in history and your constitutional right to turn the tide.

The Modern “Middle Passage”
In order to properly describe the extent to which our criminal justice system is inherently and overwhelmingly racist, we must learn to speak about it with a new language. The current language, inculcated into the population by the government and corporate media over several decades, includes phrases such as “tough on crime,” “zero tolerance,” and “three strikes.” This type of rhetoric has been delivered repeatedly and enthusiastically since President Ronald Reagan declared the official start to the War on Drugs in 1982. Thirty years and a billion episodes of Law & Order later, we are all fluent in the language of narcotics.

Unfortunately, most of us have turned a blind eye to the mass incarceration of young black men in America during this time. Most of us shrugged it off. Most of us have failed to comprehend the rise of the prison industrial complex. Most of us, but not all of us.

In her book, The New Jim Crow, Michelle Alexander speaks to both the sociological and institutional aspects of racism in the American legal system. Since its publication in 2010, her book has been gradually galvanizing members of the black community around the concept of incarceration as a new form of slavery. And because of the efforts of outspoken leaders such as Dr. Cornel West, tireless advocacy from grassroots drug and prison reform groups and the comprehensive analysis provided by Alexander, the nation is beginning to speak about incarceration with a new language.

Rev. Roger Williams, pastor of the First Baptist Church in Glen Cove, N.Y., and president of the local NAACP chapter, says the reaction in the black community has been “multifaceted.” He says Alexander’s book has certainly inspired debate, with some putting “all of the onus on the black community,” others who have a “balanced understanding,” and “then you have those who feel like white folks are coming for you.” In every case, says Williams, “it’s almost like shoveling smoke trying to get a consensus, but it’s certainly stirring leadership.”

Fred Brewington, a prominent New York attorney and activist, has lectured frequently on this issue and even given sermons on The New Jim Crow, as he lives it every day in the criminal justice system.
“Unfortunately, the system has become the norm,” says Brewington. He shares Williams’ view that the book hasn’t necessarily filtered through the black community, but it has started to take root. “It’s not as though everyone is waking up and saying, ‘Where are all our African American men?’” But he calls Alexander’s book a “wonderful compilation of information that is there for the use of front-line advocates.”

Alexander’s book boldly equates the effects of today’s punitive drug laws to those of the Jim Crow laws that legalized segregation and unequal treatment under the law with respect to race. Specifically, she addresses the mass incarceration of black men in America under draconian drug statutes. For those who believe her analogy is a stretch, Alexander has a powerful weapon at her disposal: statistics.

Our modern journey to enslavement begins in 1972 in the years immediately following stark gains made during the Civil Rights movement. The prison population was around 350,000 as compared to 2.2 million people today. In 1972, violent crime had already peaked and was on the decline in the United States. The reason for the peak during the prior years was arguably the result of the Baby Boomers being between 18 and 25 years old—the prime adolescent years of criminal agitation—mixed with civil unrest and protests during the Vietnam era.

But by the mid to late ’70s, conscription had formally ended, the Boomers were more worried about getting jobs than getting high and violent crime was precipitously declining. As Alexander notes in The New Jim Crow, the National Advisory Commission on Criminal Justice Standards and Goals recommended as early as 1973, “no new institutions for adults should be built and existing institutions for juveniles should be closed.”

Sociologists and criminologists had come to realize that punitive punishments and long-term sentences had little to no positive impact on crime statistics and that rehabilitation and treatment were more appropriate measures for all but the most violent criminals. Plus, the numbers were on their side. Despite a difficult economy, violent crime was falling—not only in the United States, but also around the globe. Given these circumstances, it was somewhat surprising that President Reagan declared an official “War on Drugs” in 1982, only two years into his first term. Surprising also because America didn’t really have a drug problem in 1982.

Ask enough people from a black neighborhood where “crack” came from, and it won’t take long for someone to tell you it was the CIA. This point has been hotly debated for years. But the fact remains that the period during which cocaine first began flooding the streets of American cities coincides precisely with the start of CIA operations in Central America, specifically Nicaragua. In the early 1980s guerrilla fighters in Nicaragua were suddenly flush with cash from American drug dealers—cash used to purchase American weapons in their fight against the Sandinistas, the Marxist government that aligned itself with Cuba.

In 1982, the U.S. Attorney General drafted a Memorandum of Understanding to the CIA establishing the United States’ interest in overthrowing the Sandinista government in Nicaragua; the same year the Reagan administration declared the War on Drugs. But crack cocaine had yet to reach the streets. It would take another three years for crack to begin appearing in the black neighborhoods; crack derived from cocaine funneled from Nicaragua. Call it a conspiracy or an incredible coincidence, but the timing is irrefutable. In the meantime, however, the Reagan administration didn’t sit idly by and wait for crack to become an epidemic. It had laws to change and a paradigm to shift. It didn’t take long.

Despite the downward trend of violent crime and no evidence yet of a rampant drug problem, the Reagan administration increased anti-drug funding for the FBI, Department of Defense and the Drug Enforcement Administration tenfold between 1980 and 1984; almost the exact size of the funding decrease to federal drug treatment, rehabilitation and education programs. Cocaine funneled from Central America hit the streets in 1985 in the form of crack and was deemed an epidemic by the media by 1986. By the end of 1986 the country had already adopted mandatory minimum sentencing requirements for drug-related felonies.

In less than five years a crisis had been fully manufactured in our cities and federal, state and local law enforcement agencies were given incentives in the form of military arsenals and cash to increase the number of arrests. Police departments were suddenly competing for cash grants, assault weapons and air power. The government’s sudden change of course and willingness to fund anything related to drug crimes also created an opportunity for private industry, which was only too anxious to jump into the fray.

In 1983, Corrections Corporation of America (CCA), the first privately held prison corporation, was formed. Despite the historically low prison population, the government’s drug war prompted private industry to suddenly jump into the incarceration game. Today, CCA is a nearly $2 billion (and growing) corporation with more than 90,000 “beds” under its control.

Allowing for privatization of our prisons is one of the more egregious examples of how divorced our policymakers are from common sense in this country. The goal of a private penal corporation is to profit from high and extended rates of “occupancy.” (CCA literally speaks in these terms as though it was part of the hospitality industry.) The private prison lobby in America has pressured lawmakers over the years to maintain harsh minimum sentencing requirements as corporations have little financial incentive to encourage rehabilitation of prisoners. As far as the private prison industry is concerned, the only useful felon is one who is incarcerated, not reformed.

Reagan’s “war” saw a clean population getting hooked on drugs. During this “war,” rehabilitation was replaced with recidivism. Treatment was abandoned in favor of solitary confinement. Education was upended by “stop and frisk.” Prevention was sacrificed in the name of incarceration. The result? Half of all inmates today are in prison for drug-related crimes, of which 80 percent are related to possession of marijuana. To say the black community bore the brunt of this war is an understatement. To wit, more black American men are in the prison system today than there were slaves just prior to the Civil War. Present the statistics any way you please. There’s no pretty picture to paint. Black America is once again in chains.

The System
Each year, hundreds of thousands of “stop-and-frisk” acts are performed in black neighborhoods. They are rarely, if ever, conducted in white neighborhoods, office complexes or college campuses. Nevertheless, politicians point to the success of “stop and frisk” in the absolute number of people arrested for carrying drugs instead of the miniscule percentage of people found carrying drugs who were searched. I’m no mathematician, but logic would dictate that if you only stop and search people in black neighborhoods, then when you find drugs on someone the chances are that person is going to be black.

The reasoning behind “stop and frisk” is so specious and the process itself so unconstitutional it defies logic. And yet, it’s generally upheld in court. In 2012, 533,000 people were subjected to “stop and frisk” by the NYPD, according to the NY Civil Liberties Union (NYCLU). Once again, even though blacks comprise 25 percent of the city’s population, they made up 55 percent of those who were stopped and frisked.

Many officers are unhappy with the “stop-and-frisk” protocol but are caught up in the nightmare due to pressure that comes from the top. Recently, the New York Daily News reported on a case where NYPD Officer Pedro Serrano testified against the department after taping his supervisor, Deputy Inspector Christopher McCormack, telling him to target “male blacks. And I told you at roll call, and I have no problem [to] tell you this, male blacks 14 to 21.” These kinds of orders are not unique. They stem from quotas that are often handed down from the police brass. And officers such as Serrano who speak out against these practices are often shunned by their colleagues.

But wrestling with one’s conscience and struggling to maintain police quotas is nothing compared to the hell that awaits a young black man swept up into the web of “stop and frisk.” Once in court, the odds are stacked against him. In a recent conversation, Brewington described the harrowing the process of being caught by the police and ushered through the “system.”

Those with a prior arrest who are brought in on possession charges may meet an attorney such as Brewington in the holding cell. They’re actually one of the lucky ones, as a staggering number of accused felons make it all the way to sentencing in front of a judge without ever having spoken to an attorney. A far cry from what happens on TV. Brewington describes the encounter as something less than a conversation, as he advises his client to answer simply “yes” or “no” because everyone around him has an incentive to use his words against him in their own plea deal.

Time is of the essence, as he is typically carrying an offer from the D.A. that is set to expire quickly. Whether they want to go free is not a question he will raise. They’re in the system now. The only question is, how long? Risking an appearance in front of a jury means risking a much longer sentence.

“The fear is that you’re going to get a jury that’s really not of your peers,” says Brewington, who is loath to advise a jury trial. He says many of the young men he encounters “have not acquired the requisite skills to appear sympathetic” in front of a jury “that looks at you as though you must have done something wrong.”

The confusing whirlwind of circumstances between being frisked by law enforcement officials and accepting a plea deal is just the start, a piece of the legacy from Reagan’s “War on Drugs.”
But if Ronald Reagan was responsible for putting so many black people behind bars, it was Bill Clinton who was most responsible for keeping them there. In an effort to make Democrats appear “tough on crime,” the Clinton administration institutionalized punitive measures outside of the system, such as lifetime bans on some forms of welfare including access to food stamps, government jobs and public housing. Parolees, now branded as felons for life, were suddenly unable to leave their district while being forbidden from returning home, accessing food and gaining employment in the public sector.

“If the initiative is to eradicate the drug trade,” says Williams, the opposite occurred. “What you’re doing is inducing the necessary anger on the inside that will be accentuated when they come back. And the only thing that will accept them back is the game.”


Throughout the ’90s, recidivism spiked and parolees came face to face with President Clinton’s most punitive anti-crime measures—the “Three Strikes” rule and mandatory minimums. Under Clinton, life sentences were mandated for any third-time felon, or felon convicted of multiple counts, regardless of the nature or severity of the crime. Mandatory minimum sentences for even the lowest level drug offenders were implemented as outrage finally began to creep into American consciousness. Black churches and organizations were up in arms. Some judges resigned. Alexander even recounts the story of a notoriously harsh judge who wept when forced to hand down a 10-year sentence “for what appeared to be a minor mistake in judgment in having given a ride to a drug dealer for a meeting with an undercover agent.”

Beyond the practical hindrances a felon faces in attempting to re-enter society, there’s an emotional burden and stigma that is carried forever; a burden that extends to the family as well. Dr. Jeffrey Reynolds, president of the Long Island Council on Alcoholism and Drug Dependence, runs programs to counsel children of incarcerated parents. While their parents are on the inside, the kids “suffer guilt, shame and isolation,” says Reynolds, adding, “Seventy percent of kids of incarcerated parents, without intervention, wind up incarcerated themselves.” But he speaks to the effectiveness of intervention, saying, “None of our kids have been incarcerated. With a little bit of help and a little bit of energy, it makes a huge difference.”

Even those who are released carry with them the shame of having been on the inside and the painful memories that accompany incarceration. Horrifically, more than 70,000 prisoners are raped every year. Additionally, tens of thousands of prisoners are locked in solitary confinement at any given time in the United States, a punishment usually employed by totalitarian regimes that was all but outlawed in the United States prior to Reagan’s War on Drugs and the emergence of the modern prison industrial complex.

Nullification is a “Juror’s Prerogative”
“Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?”
—Henry David Thoreau, Civil Disobedience

You don’t have to agree that the “War on Drugs” was an intentional war on the poor, disenfranchised people of color in this country to understand that this was the result. Thinking, feeling people know these laws must be changed. And while we, as citizens, must indeed protest, engage in civil disobedience and write to Congress, there is more that can be done and it begins with understanding your rights.

In a New York Times op-ed last year, Alexander floated a question raised to her by a woman named Susan Burton. Her question was simple, but brilliant: What if there was a movement to convince “thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out?” Her supposition was that this would theoretically crash the criminal justice system. She’s right. But the risk would be enormous given the potential and very legal retribution the system provides for.

But if the black community is examining this option and weighing the risks of such a strategy, it is incumbent upon the white liberal community to do the same on the opposite side of the equation. In this scenario, African Americans have everything to lose and white people have nothing to lose. So to possess this knowledge, have nothing to lose and still refuse to be an “upstander” is to be silently complicit in modern-day slavery.

Most white Americans have only a casual relationship with our legal system. Their understanding of what is just and what is legal generally comes from watching television crime shows and movies. This is why most people have the impression that the sole responsibility of a juror is to deliver a verdict based upon legal facts and that his or her personal feelings of fairness and justice cannot be considered.

This is patently false.

If you manage to get by “voir dire,” the process of questioning jurors to sit for a particular trial, and are fortunate enough to be selected, you can participate in a revolutionary movement. You can hang a jury without ever having to explain why. Jurors such as this are referred to as “stealth jurors.” Quiet activists who are guided by conscience not convention, or as Fred Brewington says, “The jury becomes the advocate for society.”
But first, you have to be in the position to do so. The key to getting through voir dire is to answer honestly without revealing anything ideologically. There is a science to voir dire and cases are often determined by how adroit an attorney is at selecting a jury. So remember these simple facts:

1) Less is more: You cannot misrepresent yourself by exercising restraint during voir dire.
2) You are not the one on trial.
3) Your goal is to get on that jury.

Serving on a jury is tedious, time-consuming and may even be financially detrimental. There is nothing romantic about the inner-workings of our legal system, no matter how glorified it is on television. Moreover, only a handful of Americans will actually be selected for a trial that involves drug possession charges for the reasons I stated in the opening of this piece. The goal here is to make enough people aware that the reason our system was designed to have trials decided by a “jury of one’s peers” was to prevent unjust laws from unfairly condemning citizens to incarceration or any form of punishment.

Like I said, the chance of being picked for a jury that involves drug possession charges is extremely remote. But our ability to disseminate a simple message of civil obedience to encourage defiance in the face of injustice has never been greater. If millions of Americans know who Joseph Kony is and know how to dance “Gangnam-Style” then they can at least understand their legal right and moral obligation to hang a jury in the case of drug possession charges.

Twitter. Facebook. Smoke signals. Whatever your preferred method of communication, it’s time to spread the word and find the “one in twelve” willing to hang the jury.

 

This article is an excerpt from Jed Morey’s forthcoming book titled The Great American Disconnect: Five Fundamental Threats to our Republic

“America in Chains” Illustration by Jon Moreno
“Dissenting Juror” Illustration by Jon Sasala
“Hang The Jury” Video by Rashed Mian
www.hangthejury.com created by Michael Conforti

Indefinite Detention: NDAA for Fiscal Year 2012

When the courts are no longer responsible for trying its citizens and the president is given the exclusive right to arbitrate in cases the military deems to be matters of national security, we have already descended far down the slippery slope toward fascism

Originally published in the Dec. 22nd edition of the Long Island Press

Every policy in Washington is developed over time and influenced by myriad factors. Even singular foreign policy events such as the Monroe Doctrine or declarations of war are the culmination of assiduous planning and debate that take into account a progression of economic, national security and human factors. Because every policy is based upon building blocks of understanding relative to the time and circumstances in which they were developed, there is always a reason why even the most divisive or treacherous idea gains support, for better or for worse.

Such is the case with section 1031 of the National Defense Authorization Act for fiscal year 2012 (NDAA), a provision commonly referred to as the “indefinite detention” clause. The NDAA itself has already passed both houses of Congress and currently awaits President Obama’s signature. The detention provision has garnered a great deal of attention from the blogosphere and advocacy groups such as the American Civil Liberties Union (ACLU) as it marks a decidedly dangerous shift in procedure and rights with respect to detainees in the War on Terror. The section, authored by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.), gives the military the ability to indefinitely detain anyone it deems to be connected to the War on Terror, thus superseding the authority of civilian courts.

The NDAA itself is a fairly routine bill that organizes funding for the military. It does not appropriate funding, which is important to understand. The original language in the 1031 amendment was troublesome enough to prompt a strong rebuke from several members of Congress and the President who threatened to veto the bill if it included this measure as written.

The revised measure attempts to codify the language with respect to detainees and assuage the fears of those who viewed this as undermining our Constitutional rights and a threat to the democratic process. The reason is that the original language was vague enough that the possibility of detaining U.S. citizens and legal aliens indefinitely without due process was left open to interpretation.

The language was “clarified” by referring specifically instead to al-Qaeda and its affiliates and exactly who has the ability to authorize detention should a person be suspected of having ties to a terrorist organization. In an attempt to calm the waters surrounding this amendment Sen. McCain—ironically the most notable former detainee in the U.S.—issued a statement saying, “the language in this bill will not affect any Americans engaging in the pursuits of their Constitutional rights.” The ACLU begs to differ.

On its website the ACLU specifically tackles the revised provision with the following: “Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.” They go on to quote Sen. Lindsey Graham (R-S.C.), who said section 1031 “does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Inside the Beltway there has been great consternation over this provision. Sen. Mark Udall (D-Colo.) put forward an amendment to water down the McCain/Levin provision (S.Amdt. 1107: To revise the provisions relating to detainee… to S. 1867) but it was voted down 61 to 37 in the Senate (the two senators from Alaska did not vote). Even FBI Director Robert Mueller has expressed concern that this language will inevitably lead to confusion in the field as to who has superseding authority during a terror investigation. The thought of the military being able to access and interrupt a civilian terror investigation and round up suspects unilaterally is a threat to every level of U.S. law enforcement. The fact that it potentially extends to American citizens, despite Sen. McCain’s claims to the contrary, speaks to the ambiguity of even the final language.

At first it seemed as though President Obama balked at this provision out of his understanding of the impact on American civil liberties and Constitutional rights; that the POTUS was back on message from his campaign and defending personal freedom. As it turns out, this couldn’t be further from reality. Incredibly, the White House reversed its stance and withdrew its opposition to the bill after the language was changed to include a stipulation that granted exclusive authority to arbitrate the detention provision away from the Secretary of Defense and directly to the president. In effect, Obama simply consolidated detainee power and privilege into the office of the president.

It’s important also to remember that this bill is not an appropriations bill. Unlike other spending bills that have been in the news this year that require passage to prevent certain government agencies from running out of funds, the NDAA does not fund the Pentagon, it organizes its expenditures and establishes certain rules and provisions. Therefore, nothing would theoretically be interrupted if this bill doesn’t pass. In other words, the POTUS has little to lose in fighting this provision. Instead, he caved. Again.

The question is: Why should this concern Americans? Remember that policy doesn’t develop in a vacuum. Sections 1031 and 1032 don’t stand on their own. When taken in conjunction with the Patriot Act and the government’s decision in 2009 to extend three controversial provisions that include granting the government the ability to collect information and conduct wire tapping and surveillance in secret without obtaining warrants, the detainee provision gets a little alarming. Add to this the extension of the “lone wolf” provision of the Patriot Act, which allows the government to track anyone around the world regardless of their affiliation, and things become even more ominous.

Again, each of these provisions has theoretical and practical merit, particularly when considered within the post 9-11 context in which they were established. Taken together, however, and the dangerous crack in the defense of our civil liberties begins to grow.

Take, for example, the case of Tarek Mehanna of Massachusetts. Mehanna, it would seem, despises America. He even went so far as to seek Jihadist training abroad though he was rebuffed. Today he is being prosecuted, not just for attempting to join a jihadist organization, but also for promoting jihadist material online. A recent Mother Jones article links the Mehanna case to the killing of “Anwar al-Awlaki, a radical U.S.-born Imam whose ability to give sermons in colloquial English made him the symbol of a new era of homegrown extremism.” Most of us harbor little sympathy for either of these men, but the government’s response and action toward both in conjunction with the steady erosion of civil liberties under the Patriot Act and the indefinite detention clause of the NDAA speak to the steady rise in domestic militarization.

When the courts are no longer responsible for trying its citizens and the president is given the exclusive right to arbitrate in cases the military deems to be matters of national security, we have already descended far down the slippery slope toward fascism. This is not hyperbole but rather a strict interpretation of fascism as an ideology that revokes individual rights under the cloak of nationalism and consolidates domestic tribunal authority under the military controlled by a singular authority.

There are two reasons most Americans care little about the debate surrounding the detention provision. One is that most people are law-abiding Americans to whom criticizing America and promoting terrorist speech is anathema. That’s a good thing. The other is that most people probably haven’t even heard of it because the debate, while raging behind closed doors in Congress and inside the blogosphere, is largely absent in the traditional media. The only plausible explanations for this omission are either that corporate media outlets don’t think it’s important or they are afraid of the potential consequences to their coverage.

Let’s assume that the issue of whether the military should be allowed to supersede an FBI investigation of U.S. citizens and indefinitely detain suspects without evidence or the requirement to divulge any of its actions is important to all of us and examine the latter. What could traditional news outlets be concerned about? Take everything covered to this point and consider the following scenario:

A credible journalist reporting on the Mehanna case would need to cite the remarks Mehanna posted on the Internet that prompted authorities to investigate him and consider him an imminent threat. This same journalist would now be technically guilty of exactly the same crime as Mehanna if he is convicted on this count and U.S. law establishes the precedent that reporting jihadist sentiments is an act of terrorism. This would be treasonous behavior calling into question the strength and breadth of the First Amendment. Theoretically the government can not only begin surveillance and wire-tapping on the journalist, the military can decide to intervene and indefinitely detain this person without due process.

Think it can’t happen? Well, technically it can because this entire scenario would be legal in the eyes of the government under the strictest interpretation of the new law. Of course it can happen. This is McCarthyism minus the hearings and histrionics of Sen. Joseph McCarthy. It was during the McCarthy years that indefinite detention was first contemplated and even briefly enacted, though it was never officially implemented or acted upon. For as long as that journalist/blogger/activist/whomever can be considered a “Lone Wolf” or perhaps linked to affiliates of al-Qaeda—an organization that is by nature indefinable—his or her constitutional rights as a citizen can be suspended. The War on Terror as conceived by George W. Bush and codified domestically under the Patriot Act, is an active and permanent war in the spirit and definition of the Cold War. If the Bush Doctrine allowed the U.S. to wage war on nations without provocation, then the McCain/Levin provision brings the doctrine home.

The moment Obama affixes his signature to the bill will mark a seminal shift in our democracy. It will also mark the tragic moment that the Obama presidency becomes indistinguishable from the Bush Administration.

 

Main photo: AP – A June file photo of the sun rising over Camp Delta detention compound at Guantanamo Bay U.S. Naval Base, in Cuba.

Below right: AP file photo of Robert Mueller. Below Left: AP file photo of Tarek Mehanna