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

The Radicalization of Muslim Americans

Does King expect American Muslims to take the stand and collapse under his glare, profess their allegiance to Allah and try to massacre everyone in the room? The “war on terror” conducted by the United States is a legitimate, and by my count, successful endeavor that in the past 10 years has resulted in several foiled plots, kept our enemies on the run, and prevented another major attack on our soil. That’s not to say we’re out of the woods, but this fight belongs in covert operations and intelligence circles. Pernicious public hearings isolating Muslims in America is like putting Islam on trial as far as our enemies around the world are concerned and will only serve to agitate them further and provide real fodder for their own propaganda.

I should like to organize a hearing to examine the radicalization of Congressman Peter King. Yes, I should like that very much. I wouldn’t want to host it, mind you. Not because it wouldn’t be a gas, but because our pugilist representative could and would quite handily kick my ass.

An open investigation into his own personal link to terrorism might provide an interesting look into the mind of Peter King. A recent article published in Mother Jones delves into his early career as “one of the nation’s most outspoken supporters of the Irish Republican Army and a prolific fundraiser for the Irish Northern Aid Committee (NorAid), allegedly the IRA’s American fundraising arm.” King would be undoubtedly truculent in his response to accusations that he gave financial assistance to what some consider a terrorist organization. So, too, would he undoubtedly miss the irony in his calling for hearings regarding the radicalization of American Muslims, slated to begin March 10.

The querulous King has often said that 80 percent of mosques in the nation are run by extremists. He asserts that Muslim extremists pose more of a threat to society than other radical elements. To place this assertion in context it’s helpful to understand who else King believes to be a threat to the nation. This is his comment on a Fox News clip, which he’s obviously very proud of because it’s on his website: “We’ve always had radicals here or there. We’ve had Neo-Nazis, we’ve had environmentalists.”

(Chokes, gasps, does spit take:) I’m sorry, did he just lump environmentalists together with Neo-Nazis?

That’s for another column. Let’s move on. The real question here is: What does the chairman of the House Homeland Security Committee expect these hearings to produce? Does King expect American Muslims to take the stand and collapse under his glare, profess their allegiance to Allah and try to massacre everyone in the room? The “war on terror” conducted by the United States is a legitimate, and by my count, successful endeavor that in the past 10 years has resulted in several foiled plots, kept our enemies on the run, and prevented another major attack on our soil. That’s not to say we’re out of the woods, but this fight belongs in covert operations and intelligence circles. Pernicious public hearings isolating Muslims in America is like putting Islam on trial as far as our enemies around the world are concerned and will only serve to agitate them further and provide real fodder for their own propaganda.

Click on the picture to expand Pete King's view of the world. (So to speak)

Read closely, all of those who would accuse me of extreme liberalism. There is a formula to beating terrorists, and it’s not pretty. It pushes against the boundaries of our civil liberties and makes us wince when we catch a glimpse of the real dirty work we do abroad. Wire-tapping works. So does undercover shit from spy movies. No need to air out our grievances in public, Pete. Big Brother is already listening. These hearings are the worst kind of political theater by a man who should know better than to throw gasoline on the fire of anti-American hatred. At a time when democracy is bursting around the globe, he embarks upon the most near-sighted and dim-witted undertaking possible to tweak the hard-liners who hate us most.

Holding this hearing is like battling cancer with Tylenol. It ignores the root cause of radical extremism, which is fairly obvious and proven. A lifetime spent in poverty or under the thumb of an oppressive regime is what can breed fundamentalism. In this sense America has been instrumental in fostering these circumstances by supporting foreign dictatorships who have strategic economic importance to our hunger for fossil fuels and ignoring nations that hold none.

Here again I return to my oft-beaten drum-warning of the evils of oil speculation in the financial markets. The steady, determined increase of commodity prices is directly correlated to the conditions of poverty around the globe. The lack of regulation on the commodities exchanges has allowed prices to skyrocket, endangering the global recovery (Fed Chairman Ben Bernanke’s words, not mine) and made access to food increasingly difficult for those who need it most.

But the majority of news outlets, to my eye, are ignoring market fundamentals by propagating the myth that tensions in the Middle East and Northern Africa are responsible for the spike in commodities pricing, oil in particular. If ever there was an argument for the price of oil being linked directly to speculation and not actual market forces, this is it. We are not experiencing a true oil crisis like the one in the 1970s because this is not a supply-and-demand issue. If $90 per barrel is the true baseline of oil pricing, can you imagine what it would be if demand was pressuring supply? I have also repeatedly heard the argument that the price of oil is related to the weak dollar, not speculation. And yet, inherent in this reasoning is the very definition of speculation! Commodities are a more lucrative, albeit risky, place to park money when the dollar is weak.

The opaque exchanges that govern the commodities market provide cover for those pressing their bets and lining the pockets of oil companies and dictators alike, thereby putting an artificial lid on economic growth and keeping food out of reach for impoverished nations. These are the seeds that grow into terrorism. This is the hearing that needs to be held.

Peter King is a fighter, literally. As a boxer he should understand that brawlers don’t always win and in this case he’s not even squaring off against the correct opponent. I believe Peter King is a patriot, no matter how misguided he sometimes is. He is also my congressman. For both reasons, I’m in his corner. But I urge him to throw in the towel and pass on this fight because in this one he is in the wrong weight class.