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I expected to spend quite some time writing about the Obama administration’s successful appeal against Katherine Forrest’s historic gutting of the indefinite detention provision of the NDAA. Yet I can add very little to Glenn Greenwald’s summation:
In May, something extremely rare happened: a federal court applied the US constitution to impose some limits on the powers of the president. That happened when federal district court judge Katherine Forrest of the southern district of New York, an Obama appointee, preliminarily barred enforcement of the National Defense Authorization Act (NDAA), the statute enacted by Congress in December 2011 with broad bipartisan support and signed into law by President Obama (after he had threatened to veto it).
That 2011 law expressly grants the president the power to indefinitely detain in military custody not only accused terrorists, but also their supporters, all without charges or trial. It does so by empowering the president to indefinitely detain not only al-Qaida members, but also members of so-called “associated forces”, as well as anyone found to “substantially support” such forces – whatever those terms might mean. I wrote about that decision and the background to this case when it was issued.
What made Judge Forrest’s ruling particularly remarkable is that the lawsuit was brought by eight journalists and activists, such as former New York Times reporter Chris Hedges, Daniel Ellsberg, Noam Chomsky, and Birgitta Jónsdóttir, who argued that their work, which involves interactions with accused terrorists, could subject them to indefinite detention under the law’s broad and vague authority, even for US citizens on US soil. The court agreed, noting that the plaintiffs presented “evidence of concrete – non-hypothetical – ways in which the presence of the legislation has already impacted those expressive and associational activities”. The court was particularly disturbed by the Obama DOJ’s adamant refusal to say, in response to being asked multiple times, that the law could not be used to indefinitely detain the plaintiffs due to their journalistic and political activities.
I was one of a chorus of writers who thanked Katherine Forrest for her intervention:
These new powers have nothing to with combatting terrorism. If the government has no evidence that can stand up in a court of law it has no business detaining anyone. No, this new power grab has an entirely different target — like the plaintiffs in this case: writers, investigative journalists, bloggers, philosophers, dissidents, human rights activists, libertarians, free-thinkers, tax protestors, critics of fractional-reserve banking, whistleblowers — people like Chris Hedges, Noam Chomsky, Daniel Ellsberg, Jennifer Bolen, and Birgitta Jonsdottir. People like Congressman Justin Amash and Congressman Adam Smith who tried to amend indefinite detention out of the bill. People like me — and to some degree, if you are reading this, people like you.
The fact that the Obama administration could not give assurances about those who simply criticise U.S. foreign policy indicates very strongly that this power grab is about shutting-up and frightening critics of the U.S. government and the Obama administration.
But — for now — §1021 of the NDAA, that implement of fascism, has been struck down and thrown out as “facially unconstitutional” as well as having a “chilling impact on First Amendment rights”.
We should thankful for this brave judge’s actions, and for the plaintiffs actions in standing up to tyranny, and vigilant against future incursions.
On the other hand, every politician involved in writing, legislating and authorising this hideous unconstitutional law should be reminded of the words of the Declaration of Independence — it is the right of the people to alter or abolish any government that becomes destructive to liberty.
And last week, Katherine Forrest demolished the Obama administrations protestations once again:
Last week, Judge Forrest made her preliminary ruling permanent, issuing a 112-page decision explaining it. Noting that the plaintiffs “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention”, she emphasized how dangerous this new law is given the extremely broad discretion it vests in the president to order people detained in military custody with no charges:
The court also brushed aside the Obama DOJ’s prime argument, echoing the theories of John Yoo: namely, that courts have no business “interfering” in the president’s conduct of war. After acknowledging that the president is entitled to deference in the national security realm, Judge Forrest dispensed with the Obama DOJ’s claim with this vital observation: one that should be unnecessary but, in the 9/11 era, is all too commonly ignored:
In other words: while the president is entitled to deference in his conduct of war, he’s not entitled to wield the power to order people, including American citizens, indefinitely imprisoned in military detention. Regardless of how he claims he intends to exercise this power, the mere act of vesting it in him so chills the exercise of first amendment and other protected rights that the constitution can have no meaning if courts permit it to stand.
Yet the Obama administration, it seems, does not like the Constitution:
In response to this ruling, the Obama administration not only filed an immediate appeal, but they filed an emergency motion asking the appeals court to lift the injunction pending the appeal. Obama lawyers wrote a breathless attack on the court’s ruling, denouncing it as “vastly troubling” and claiming that it “threatens tangible and dangerous consequences in the conduct of an active military conflict” and “threatens irreparable harm to national security”.
While the Bush and Obama DOJs have long absurdly interpreted the 2001 AUMF to apply to this broader range, and while some courts have accepted that interpretation, the law itself vested no such power. The NDAA did. That is why civil liberties groups such as the ACLU denounced Obama’s signing of it so vociferously, and it is why the Obama DOJ is so horrified, obviously, by the prospect that it will be invalidated: precisely because it so drastically expands their detention power. Both the court’s ruling and the Obama DOJ’s reaction to that ruling prove that the NDAA does indeed provide the president with significantly enhanced authority of indefinite detention.
Greenwald draws a brilliant and frightening parallel:
On the very same day that the Obama DOJ fights vigorously in US courts for the right to imprison people without charges, the Afghan government fights just as vigorously for basic due process.
Remember: the US, we’re frequently told, is in Afghanistan to bring democracy to the Afghan people and to teach them about freedom. But the Afghan government is refusing the US demand to imprison people without charges on the ground that such lawless detention violates their conceptions of basic freedom. Maybe Afghanistan should invade the US in order to teach Americans about freedom.
This development should be deeply troubling for all Americans, and all of us who believe that the values of the American revolution — freedom of speech, liberty, representation, due process — should be a light unto the world.
The YouTube video depicting Mohammed is nothing more than the straw that broke the camel’s back. This kind of violent uprising against American power and interests in the region has been a long time in the making. It is not just the continuation of drone strikes which often kill civilians in Pakistan, Yemen, Somalia and Afghanistan, either. Nor is it the American invasions and occupations of Iraq and Afghanistan. Nor is it the United States and the West’s support for various deeply unpopular regimes such as the monarchies in Bahrain and Saudi Arabia (and formerly Iran). Nor is it that America has long favoured Israel over the Arab states, condemning, invading and fomenting revolution in Muslim nations for the pursuit of nuclear weapons while turning a blind eye to Israel’s nuclear weapons and its continued expansion into the West Bank.
Americans and Europeans are no doubt looking at the protests over the “film”, recalling the even more violent protests during the Danish cartoon affair, and shaking their heads one more at the seeming irrationality and backwardness of Muslims, who would let a work of “art”, particularly one as trivial as this, drive them to mass protests and violence.
Yet Muslims in Egypt, Libya and around the world equally look at American actions, from sanctions against and then an invasion of Iraq that killed hundreds of thousands of Iraqis and sent the country back to the Stone Age, to unflinching support for Israel and all the Arab authoritarian regimes (secular and royal alike) and drone strikes that always seem to kill unintended civilians “by mistake”, and wonder with equal bewilderment how “we” can be so barbaric and uncivilised.
All of these things (and many more) have contributed to Muslim and Arab anger toward the United States and the West. Yet the underlying fact of all of these historical threads has been the United States’ oil-driven foreign policy. Very simply, the United States has for over half a century pursued a foreign policy in the region geared toward maintaining the flow of oil out of the region at any cost — even at the cost of inflaming the irrational and psychopathic religious elements that have long existed in the region.
This is not to defend the barbaric elements who resort to violence and aggression as a means of expressing their disappointment with U.S. foreign policy. It is merely to recognise that you do not stir the hornet’s nest and then expect not to get stung.
And the sad thing is that stirring the hornet’s nest is totally avoidable. There is plenty of oil and energy capacity in the world beyond the middle east. The United States is misallocating capital by spending time, resources, energy and manpower on occupying the middle east and playing world policeman. Every dollar taken out of the economy by the IRS to be spent drone striking the middle east into the stone age is a dollar of lost productivity for the private market. It is a dollar of productivity that the market could have been spent increasing American energy capacity and energy infrastructure in the United States — whether that is in oil, natural gas, solar, wind or hydroelectric.
And this effect can spiral; every dollar spent on arming and training bin Laden and his allies to fight the Soviet Union begot many more thousands of dollars of military spending when bin Laden’s mercenaries turned their firepower onto the United States, and the United States chose to spend over ten years and counting occupying Afghanistan (rightly known as the graveyard of empires). It is likely that the current uprisings will trigger even more U.S. interventionism in the region (indeed it already has as marines have already been dispatched to Yemen) costing billions or even trillions of dollars more money (especially if an invasion of Iran is the ultimate outcome). This in turn is likely to trigger even fiercer resistance to America from the Islamist elements, and so the spiral continues on.
The only way out of this money-sucking, resource-sucking, life-sucking trap that is very literally obliterating the American empire is to swallow pride and get out of the middle east, to stop misallocating American resources and productivity on unwinnable wars.
But neither major Presidential candidate is interested in such a policy. Perhaps it is because war is a great profit source for the military-industrial complex, the force to which both the Democratic and Republican parties are beholden?
In any case, we should expect to see much more of this:
I’m sick of war.
Officially the cost of the war on terror has been $1.3 trillion. And military spending — especially the interest on debt to pay for past wars — keeps growing year on year:
As General Eisenhower noted:
Every gun that is made, every warship launched, every rocket fired, signifies in the final sense a theft from those who hunger and are not fed, those who are cold and are not clothed.
This world in arms is not spending money alone. It is spending the sweat of its labourers, the genius of its scientists, the hopes of its children. The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities. It is two electric power plants, each serving a town of 60,000 population. We pay for a single fighter with a half-million bushels of wheat. We pay for a single destroyer with new homes that could have housed more than 8,000 people. This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron.
The cost in life was been ever steeper; over a million Iraqis died.
But it’s more than cost; this a problem of responsibility. George W. Bush and Dick Cheney live a comfortable life of wealth and leisure, four years after leaving office having started two destructive, costly and ineffective wars of choice. They didn’t fight. None of their children fought. But lots of American and British soldiers and innocent Arabs got their limbs and heads blown off.
Of course, military deterrence — and sometimes military action — is necessary.
As Eisenhower noted:
A vital element in keeping the peace is our military establishment. Our arms must be mighty, ready for instant action, so that no potential aggressor may be tempted to risk his own destruction.
The trouble is that war is a great excuse for weapons contractors to make lots of money, and weapons contractors happily fund war-mongering politicians into power. That’s the self-perpetuating military industrial complex.
So the problem then lies in differentiating the necessary actions from the unnecessary.
I propose a simple heuristic for this purpose, one that if introduced would also render the war-mongering politician — the Congressman who votes to authorise, or the President who signs the authorisation into law — personally responsible:
If you start a war, you have to fight. If you cannot fight, then your nearest fit relative has to fight.
This puts the skin back into the game. You want to risk blood and treasure to start a war? If it’s that important, you’ll put your body and blood on the line before you ask any soldier to fight, or any taxpayer to pay. If not, then it must not be necessary.
Would George W. Bush have started the Iraq war had he known his two daughters would be conscripted, and shipped off to Iraq to find Saddam’s weapons of mass destruction?
I doubt it.