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

Gangsta Prankstas: Citizen Murdoch and Bill Oh’Really?

The actions of those involved in the evolving News Corp scandal are hardly surprising given the arrogance endemic to the organization as a whole.

Rupert MurdochIf it bleeds it leads.  With the specter of his News Corp getting hacked to pieces by the bloody politicians who have done his bidding, Rupert Murdoch has become the bleeding headline.  The miasma of Murdoch’s brand of “yellow journalism”, to quote frequent Fox News pundit, Congressman Peter King, has hung over Brits (and Yanks) like a London fog.  Now it is being dispersed by blasts from the media mogul’s very own supplicants.

Hacking into the cell phone of a murdered thirteen years-old schoolgirl to make room for false hope and more expressions of family anguish seemed just the ticket to keep a titillating tabloid story going.  Ditto that for terrorist bombing victims and dead soldiers.  There is no place for morality and ethics when titillation, manipulation, power and profits are the four corners of your world.  But sex, lies and payoffs have turned toxic for the Thunder from Down Under.     

Conservative British Prime Minister David Cameron, who appointed the editor of Murdoch’s offending newspaper as his administration’s chief spokesman, was shocked, shocked by all this appalling behavior: “The people involved, whether they were directly responsible for the wrongdoing, sanctioned it, or covered it up, however high or low they go, must not only be brought to justice, they must also have no future role in the running of a media company in our country.”

On this side of the pond, King wrote FBI Director Robert Mueller, to declare, “It is revolting to imagine that members of the media would seek to compromise the integrity of a public official for financial gain in the pursuit of yellow journalism….  If these allegations are proven true, the conduct would merit felony charges for attempting to violate various federal statutes related to corruption of public officials and prohibitions against wiretapping. Any person found guilty of this purported conduct should receive the harshest sanctions available under law.” 

To what degree has this gangster culture permeated Murdoch States-side operations like Fox ‘News’?  Exhibit A is the Bill O’Reilly Loufa Affair.  This sordid sortie was quickly covered up by $6 million in hush money Fox News president Roger Ailes purportedly paid to make one plaintiff female producer half O’Really’s age go away.   Leave aside the graphic recordings of phone sex and sexual predation contained in the Verified Complaint, Index No. 04114558  filed on October 13, 2004 in the Supreme Court of the State of New York.  In “Andrea Mackris, Plaintiff against Bill O’Reilly, News Corporation, Fox News Channel, Defendants,” O’Reilly rails into Mackris’ hidden microphone about what would happen should one of his victims complain:

“If any woman ever breathed a word I’ll make her pay so dearly that she’ll wish she’d never been born.  I’ll rake her through the mud, bring up things in her life and make her so miserable that she’ll be destroyed.  And besides, she wouldn’t be able to afford the lawyers I can or endure it financially as long as I can.  And nobody would believe her, it’d be her word against mine and who are you going to believe?  Me or some unstable woman making outrageous accusations.  They’d see her as some psycho, someone unstable.  Besides, I’d never make the mistake of picking some crazy, unstable girl like that…

“If you cross Fox News Channel, it’s not just me, it’s Roger Ailes who will go after you.  I’m the street guy out front making loud noises about issues, but Ailes operates behind the scenes, strategizes and makes things happen so that one day BAM!  The person gets what’s coming to them but never sees it coming.  Look at Al Franken, one day he’s going to get a knock on his door and life as he’s known it will change forever.  That day will come happen, trust me.” 

Oh really? Whitey Bolger couldn’t have gangsta-spun it any better, though he wouldn’t have gotten caught on tape.

Implication in criminal activity has not been a disqualifier in the News Corp/Fox world.  Consider Fox pundit Karl Rove, who barely escaped prosecution for his role in leaking the identity of CIA agent Valerie Plame.  Rove came to his Machiavellian station as “Bush’s Brain” by cutting his spurs on political prankstering.  At 19, Rove assumed a false identity to access the campaign office of a Democratic candidate for Illinois treasurer.  He concocted a campaign flier on a thousand sheets of stolen letterhead promising “free beer, free food, girls and a good time for nothing” and distributed them to derelicts who showed up to disrupt the Democrat’s campaign rally.   Rove’s fingerprints were all over rumors of John McCain’s POW-induced instability and black love child during the 2000 South Carolina Republican primary.

Grand Old Pranksters can track their tradition back through Lee Atwater, Donald Segretti to the godfather of modern political buggery, Tricky Dick.  But it was the grand old man of yellow journalism, William Randolph “You can crush a man with journalism” Hearst who can lay claim to one of the founding principles of Fox family values when he got the boot from Harvard for a bevy of pranks including the imprinting of professors’ names inside chamber (piss) pots.  Or so he claimed; turns out he was expelled for grades.  Could prankstering be a gateway drug for News Corp criminality?

Lawyer for the family of murdered thirteen years-old Milly Dowler provided the most damning judgment upon yet another resignation and arrest of a News Corp exec: “This is not just about one individual but about the culture of an organization.”

“Charles Foster Kane is a scoundrel,” said Citizen Kane 72 years ago.  “His paper should be run out of town.”