"Are Americans in Line for Gitmo?" by Ray McGovern, December 05, 2011
Ambiguous but alarming new wording tucked into the National Defense Authorization Act (NDAA) and just passed by the Senate is reminiscent of the “extraordinary measures” introduced by the Nazis after they took power in 1933.
And the relative lack of reaction so far calls to mind the oddly calm indifference with which most Germans watched the erosion of the rights that had been guaranteed by their own constitution. As one German writer observed, “With sheepish submissiveness we watched it unfold, as if from a box at the theater.”
The writer was Sebastian Haffner (real name Raimund Pretzel), a young German lawyer worried at what he saw in 1933 in Berlin but helpless to stop it since, as he put it, the German people “collectively and limply collapsed, yielded, and capitulated.”
“The result of this millionfold nervous breakdown,” wrote Haffner at the time, “is the unified nation, ready for anything, that is today the nightmare of the rest of the world.” Not a happy analogy.
The Senate bill, in effect, revokes an 1878 law known as the Posse Comitatus Act, which banned the Army from domestic law enforcement after the military had been used — and often abused — in that role during Reconstruction. Ever since then, that law has been taken very seriously — until now. Military officers have had their careers brought to an abrupt halt by involving federal military assets in purely civilian criminal matters.
But that was before 9/11 and the mantra “9/11 changed everything.” In this case of the Senate-passed NDAA — more than a decade after the terror attacks and even as U.S. intelligence agencies say al-Qaeda is on the brink of defeat — Congress continues to carve away constitutional and legal protections in the name of fighting “terrorism.”
The Senate approved the expanded military authority despite opposition from Defense Secretary Leon Panetta, Director of National Intelligence James Clapper, and FBI Director Robert Mueller — and a veto threat from President Barack Obama.
The Senate voted to authorize — and generally to require — “the Armed Forces of the United States to detain covered persons” indefinitely. And such “covered persons” are defined not just as someone implicated in the 9/11 attacks but anyone who “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
Though the wording is itself torturous — and there is a provision for a waiver from the Defense Secretary regarding mandatory military detentions — the elasticity of words like “associated forces” and “supported” have left some civil libertarians worried that the U.S. military could be deployed domestically against people opposing future American wars against alleged “terrorists” or “terrorist states.”
The Senate clearly wished for the military’s “law and order” powers to extend beyond the territory of military bases on the theory that there may be “terrorsymps” (short for “terrorist sympathizers”) lurking everywhere.
Is the all-consuming 10-year-old struggle against terrorism rushing headlong to consume what’s left of our constitutional rights? Do I need to worry that the Army in which I was proud to serve during the 1960s may now kick down my front door and lead me off to indefinite detention — or worse?
[....]
A Lost Respect
Citizens of powerful countries used to have their rights widely respected — at home and abroad. “I am a Roman citizen” — civis Romanus sum — once counted for something. Even more respect tended to greet “I am an American” — because of our power abroad and our once-famous adherence to a written Constitution at home.
Adherence? Lately not so much. Not since power-hungry politicians set out to exploit 9/11 so that “everything changed,” including even the rights formerly guaranteed us by the Bill of Rights and the habeas corpus protection in the Constitution itself.
Awlaki’s is an interesting case in point. A Muslim whose moderating influence was sought by the Washington establishment in the immediate aftermath of 9/11, he became “radicalized” by our warring on his fellow Muslims. By noting that little-known fact, am I showing “support” for “al-Qaeda, the Taliban, or associated forces”? Will the U.S. military be obliged to target me, too?
[....]
Civis Americanus sum. Yes, I am. But does that really count for much today? It certainly offered no protection to Awlaki, or to his son. What’s to prevent one of my former colleagues at the military or the CIA — those I have roundly criticized for endorsing and cheering on the kidnappers, torturers, and assassins in their employ — from adding me to the “kill or capture but preferably kill” list?
What has been happening in this continuation of a seemingly endless “war on terror” — amid widespread public indifference — makes Richard Nixon’s “enemies list” look like a board game. At least the Nixon White House had a modicum of good sense not to flaunt its skirting the law and violating constitutional rights.
It is a safe bet that functionaries at the National Security Council are updating the kill-or-capture list even now, confident that President Obama will sign the Senate version of the bill into law once it gets predictably endorsed by the Republican-controlled House.
Then, what is to prevent NSC “counterterrorist” functionaries from summoning the go-to lawyers still ensconced in the Justice Department and asking them for help in navigating what appear to be deliberate ambiguities in the new bill’s language.
[....]
Early Obfuscation
From my erstwhile colleagues at CIA, there has been more mumbo jumbo aimed at disguising what is really afoot. According to press reports, the CIA general counsel has already said, disingenuously: “American citizens are not immune from being treated like an enemy if they take up arms against the United States.”
But one does not need to “take up arms” in order to be labeled a “combatant,” as the government is defining such terms. Awlaki didn’t take up arms; he was said to have provided “material support to terrorism” by his alleged — but unproven — encouragement of terrorist attacks on the United States. (Under the new NDAA, a similar fate could befall someone who advocates resistance to “coalition partners,” like NATO countries or some corrupt governments that are U.S. allies, such as the Karzai regime in Afghanistan or the terror-linked government of Pakistan.)
[....]
In sum, the wording appears to create a parallel military justice system that, theoretically, we are all subject to. All that would be needed is an allegation by someone that we assisted someone who in some way assisted someone else in some way. An actual terrorist act would not be needed — and neither would a trial by one’s peers as guaranteed by the Constitution to determine actual “guilt.”
Should you be tempted to dismiss this as “liberal fear-mongering,” take a look at this item from FoxNews.com:
The bill would require military custody of a suspect deemed to be a member of Al Qaeda or its affiliates and involved in plotting or committing attacks on the United States. … The legislation also would give the government the authority to have the military hold an individual suspected of terrorism indefinitely, without a trial.
“Since the bill puts military detention authority on steroids and makes it permanent, American citizens and others are at greater risk of being locked away by the military without charge or trial if this bill becomes law,” said Christopher Anders, senior legislative counsel for the American Civil Liberties Union.
A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain (R-Arizona) and Lindsey Graham (R-South Carolina) to claim that the bill’s stringent provisions do apply to U.S. citizens as well as non-citizens.
In addition, the new wording adds “associated forces” (whatever that means) to the previous AUMF’s list of targets. The language of the AUMF of September 2001 was limited to “those nations, organizations, or persons he [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
[....]
What speaks loudest to me is the fact that two key amendments did not pass. Senate Amendment 1125 would have limited the mandatory detention provision to persons captured abroad. And Amendment 1126 would have provided that the authority of the military to detain persons without trial until the end of hostilities would not apply to American citizens. Both amendments were voted down 45 to 55.
[....]
Ambiguous but alarming new wording tucked into the National Defense Authorization Act (NDAA) and just passed by the Senate is reminiscent of the “extraordinary measures” introduced by the Nazis after they took power in 1933.
And the relative lack of reaction so far calls to mind the oddly calm indifference with which most Germans watched the erosion of the rights that had been guaranteed by their own constitution. As one German writer observed, “With sheepish submissiveness we watched it unfold, as if from a box at the theater.”
The writer was Sebastian Haffner (real name Raimund Pretzel), a young German lawyer worried at what he saw in 1933 in Berlin but helpless to stop it since, as he put it, the German people “collectively and limply collapsed, yielded, and capitulated.”
“The result of this millionfold nervous breakdown,” wrote Haffner at the time, “is the unified nation, ready for anything, that is today the nightmare of the rest of the world.” Not a happy analogy.
The Senate bill, in effect, revokes an 1878 law known as the Posse Comitatus Act, which banned the Army from domestic law enforcement after the military had been used — and often abused — in that role during Reconstruction. Ever since then, that law has been taken very seriously — until now. Military officers have had their careers brought to an abrupt halt by involving federal military assets in purely civilian criminal matters.
But that was before 9/11 and the mantra “9/11 changed everything.” In this case of the Senate-passed NDAA — more than a decade after the terror attacks and even as U.S. intelligence agencies say al-Qaeda is on the brink of defeat — Congress continues to carve away constitutional and legal protections in the name of fighting “terrorism.”
The Senate approved the expanded military authority despite opposition from Defense Secretary Leon Panetta, Director of National Intelligence James Clapper, and FBI Director Robert Mueller — and a veto threat from President Barack Obama.
The Senate voted to authorize — and generally to require — “the Armed Forces of the United States to detain covered persons” indefinitely. And such “covered persons” are defined not just as someone implicated in the 9/11 attacks but anyone who “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
Though the wording is itself torturous — and there is a provision for a waiver from the Defense Secretary regarding mandatory military detentions — the elasticity of words like “associated forces” and “supported” have left some civil libertarians worried that the U.S. military could be deployed domestically against people opposing future American wars against alleged “terrorists” or “terrorist states.”
The Senate clearly wished for the military’s “law and order” powers to extend beyond the territory of military bases on the theory that there may be “terrorsymps” (short for “terrorist sympathizers”) lurking everywhere.
Is the all-consuming 10-year-old struggle against terrorism rushing headlong to consume what’s left of our constitutional rights? Do I need to worry that the Army in which I was proud to serve during the 1960s may now kick down my front door and lead me off to indefinite detention — or worse?
[....]
A Lost Respect
Citizens of powerful countries used to have their rights widely respected — at home and abroad. “I am a Roman citizen” — civis Romanus sum — once counted for something. Even more respect tended to greet “I am an American” — because of our power abroad and our once-famous adherence to a written Constitution at home.
Adherence? Lately not so much. Not since power-hungry politicians set out to exploit 9/11 so that “everything changed,” including even the rights formerly guaranteed us by the Bill of Rights and the habeas corpus protection in the Constitution itself.
Awlaki’s is an interesting case in point. A Muslim whose moderating influence was sought by the Washington establishment in the immediate aftermath of 9/11, he became “radicalized” by our warring on his fellow Muslims. By noting that little-known fact, am I showing “support” for “al-Qaeda, the Taliban, or associated forces”? Will the U.S. military be obliged to target me, too?
[....]
Civis Americanus sum. Yes, I am. But does that really count for much today? It certainly offered no protection to Awlaki, or to his son. What’s to prevent one of my former colleagues at the military or the CIA — those I have roundly criticized for endorsing and cheering on the kidnappers, torturers, and assassins in their employ — from adding me to the “kill or capture but preferably kill” list?
What has been happening in this continuation of a seemingly endless “war on terror” — amid widespread public indifference — makes Richard Nixon’s “enemies list” look like a board game. At least the Nixon White House had a modicum of good sense not to flaunt its skirting the law and violating constitutional rights.
It is a safe bet that functionaries at the National Security Council are updating the kill-or-capture list even now, confident that President Obama will sign the Senate version of the bill into law once it gets predictably endorsed by the Republican-controlled House.
Then, what is to prevent NSC “counterterrorist” functionaries from summoning the go-to lawyers still ensconced in the Justice Department and asking them for help in navigating what appear to be deliberate ambiguities in the new bill’s language.
[....]
Early Obfuscation
From my erstwhile colleagues at CIA, there has been more mumbo jumbo aimed at disguising what is really afoot. According to press reports, the CIA general counsel has already said, disingenuously: “American citizens are not immune from being treated like an enemy if they take up arms against the United States.”
But one does not need to “take up arms” in order to be labeled a “combatant,” as the government is defining such terms. Awlaki didn’t take up arms; he was said to have provided “material support to terrorism” by his alleged — but unproven — encouragement of terrorist attacks on the United States. (Under the new NDAA, a similar fate could befall someone who advocates resistance to “coalition partners,” like NATO countries or some corrupt governments that are U.S. allies, such as the Karzai regime in Afghanistan or the terror-linked government of Pakistan.)
[....]
In sum, the wording appears to create a parallel military justice system that, theoretically, we are all subject to. All that would be needed is an allegation by someone that we assisted someone who in some way assisted someone else in some way. An actual terrorist act would not be needed — and neither would a trial by one’s peers as guaranteed by the Constitution to determine actual “guilt.”
Should you be tempted to dismiss this as “liberal fear-mongering,” take a look at this item from FoxNews.com:
The bill would require military custody of a suspect deemed to be a member of Al Qaeda or its affiliates and involved in plotting or committing attacks on the United States. … The legislation also would give the government the authority to have the military hold an individual suspected of terrorism indefinitely, without a trial.
“Since the bill puts military detention authority on steroids and makes it permanent, American citizens and others are at greater risk of being locked away by the military without charge or trial if this bill becomes law,” said Christopher Anders, senior legislative counsel for the American Civil Liberties Union.
A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain (R-Arizona) and Lindsey Graham (R-South Carolina) to claim that the bill’s stringent provisions do apply to U.S. citizens as well as non-citizens.
In addition, the new wording adds “associated forces” (whatever that means) to the previous AUMF’s list of targets. The language of the AUMF of September 2001 was limited to “those nations, organizations, or persons he [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
[....]
What speaks loudest to me is the fact that two key amendments did not pass. Senate Amendment 1125 would have limited the mandatory detention provision to persons captured abroad. And Amendment 1126 would have provided that the authority of the military to detain persons without trial until the end of hostilities would not apply to American citizens. Both amendments were voted down 45 to 55.
[....]
