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January 06, 2012

Now we can all be indefinitely detained

On New Year's eve, a time when no one is paying much attention to politics, president Obama signed into law the National Defense Authorization Act. This was a bill that funded the US military for the rest of the fiscal year. But within that legislation was a provision that allows the US government to indefinitely detain without trial even US citizens, by making the entire world, including the US, part of the 'battlefield' which means that anyone can be picked up anywhere and declared to be an enemy combatant and thus stripped of their rights. The administration claims it has the right to indefinitely detain anyone that they, and they alone, assert is 'at war with the United States', whatever that means. This continues the whittling away at habeas corpus, one of the bedrock protections of individual liberty.

According to the ACLU, the legislation was "drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing." It then passed easily in both houses with little or no debate, always a dangerous sign, since such speedy and secretive bipartisan harmony usually means that the general public is getting a raw deal. The Daily Show rightly ridiculed the rushed Senate debate.


The Senate finally voted 93 to 7 in favor of the bill. The only 'no' votes were Tom Harkin (D, Iowa), Tom Coburn (R, Ok), Rand Paul (R, Ky), Jeff Merkley (D, Or), Ron Wyden (D, Or), Mike Lee (R, UT), and Bernie Sanders (I, VT). Notable yes votes were from Al Franken and Sherrod Brown. Ohio's Brown, a supposed liberal, has a disgraceful record of voting for authoritarian legislation such as the Military Commissions Act in 2006 and now this. The House of Representatives voted 283 to 136 in favor with 14 not voting.

Human rights groups have been outspoken in their condemnation of the Act. Human Rights Watch has called it a 'historic tragedy for rights' and its executive director Kenneth Roth has said that, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law."

The far-reaching detainee provisions would codify indefinite detention without trial into US law for the first time since the McCarthy era when Congress in 1950 overrode the veto of then-President Harry Truman and passed the Internal Security Act. The bill would also bar the transfer of detainees currently held at Guantanamo into the US for any reason, including for trial. In addition, it would extend restrictions, imposed last year, on the transfer of detainees from Guantanamo to home or third countries – even those cleared for release by the administration.

As Justin Raimondo points out, this legislation "essentially repeals the longstanding Posse Comitatus Act, which prevents the military from engaging in law enforcement on US territory." Obama apologists have, as usual, said that things are not that bad but Glenn Greenwald sets them straight using the direct language of the Act to make his case. Matt Taibbi is disturbed by the muted reactions to this the new law, when the opposition should be vociferous from all sides of the political spectrum.

Those of us who have been following the steady erosion of constitutional rights under the Bush/Cheney and Obama regimes knew this was coming. As is often the case when civil liberties are involved, Obama and the Democrats have played a double game, strengthening the authoritarian powers of government while pretending to care about freedoms. George Washington University law professor Jonathan Turley rips into the Act and Obama's duplicity;

Ironically, in addition to breaking his promise not to sign the law, Obama broke his promise on signing statements and attached a statement that he really does not want to detain citizens indefinitely.

Obama insisted that he signed the bill simply to keep funding for the troops. It was a continuation of the dishonest treatment of the issue by the White House since the law first came to light. As discussed earlier, the White House told citizens that the president would not sign the NDAA because of the provision. That spin ended after sponsor Senator Carl Levin (Democrat, Michigan) went to the floor and disclosed that it was the White House and insisted that there be no exception for citizens in the indefinite detention provision.

[T]he insistence that you do not intend to use authoritarian powers does not alter the fact that you just signed an authoritarian measure. It is not the use but the right to use such powers that defines authoritarian systems.

The almost complete failure of the mainstream media to cover this issue is shocking.

On the NDAA, reporters continue to mouth the claim that this law only codifies what is already the law. That is not true. The administration has fought any challenges to indefinite detention to prevent a true court review. Moreover, most experts agree that such indefinite detention of citizens violates the constitution.

There are also those who continue the longstanding effort to excuse Obama's horrific record on civil liberties by blaming either others or the times. One successful myth is that there is an exception for citizens. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. The provision merely states that nothing in the provisions could be construed to alter Americans' legal rights. Since the Senate clearly views citizens as not just subject to indefinite detention but even to execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.

The Obama administration and Democratic members are in full spin mode – using language designed to obscure the authority given to the military. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the next section, 1031, which offers no exemption for American citizens from the authorisation to use the military to indefinitely detain people without charge or trial.

Obama could have refused to sign the bill and the Congress would have rushed to fund the troops. Instead, as confirmed by Senator Levin, the White House conducted a misinformation campaign to secure this power while portraying the president as some type of reluctant absolute ruler, or, as Obama maintains, a reluctant president with dictatorial powers.

For civil libertarians, the NDAA is our Mayan moment: 2012 is when the nation embraced authoritarian powers with little more than a pause between rounds of drinks.

The Daily Show rightly mocks Obama's bogus attempts at pretending that he cares about civil liberties.

So what happens if you or someone you know is captured and detained under this law? Not to worry! Tom the Dancing Bug has a handy information sheet telling you what rights you still have.

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