Judge, Jury & Executioner

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I’ve criticised Rand Paul in the past on a few issues, but none of my previous doubts and nitpicks can dilute the sheer brilliance of his almost-thirteen-hour filibuster.

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The absurdity of the legal framework built up by the Bush and Obama administrations was a house of cards for Paul to poke at and watch crumble. Paul’s key question is does Obama believe he can order the killing of an American citizen, on American soil, based on nothing more than his own judgment that the person is a threat?

Under the Fifth Amendment, suspects are entitled to the due process of law:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And how can any President claim that his own judgment, or that of his Attorney General counts as the due process of law? The targeted drone killings that have occurred in foreign lands — and which Holder admits could theoretically occur on American soil — are very simply extrajudicial killings. And extrajudicial killings are utterly barbaric, incompatible with modern civilisation, incompatible with any notion of human rights or due process, and incompatible with the Constitution.

The status quo evolved very much out of post-9/11 paranoia, as exemplified by Dick Durbin’s Cheneyesque questions aimed at Paul toward the end of the Filibuster, and by Eric Holder’s initial written response referencing Pearl Harbour and 9/11:

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Neither Rand Paul nor myself are suggesting that an attempted violent attack should not be stopped using necessary means (although not excessive means). But if an act of terror has not commenced (and even in many cases where an act of terror has commenced) it should be possible to arrest and question a suspect, rather than killing them. If a suspect can be arrested, charged and tried, there should be no reason why that should not happen.  And unless an act of terror has actively commenced, or unless a suspect can be convicted beyond reasonable doubt in a court of law the government’s suspicion is only a suspicion, and the government has absolutely no business detaining or punishing a suspect.

After 9/11, due process was effectively suspended, and for all of Obama’s lip-service to “change”, this mindset prevailed through his first and into his second administration. Rand Paul’s dogged, tireless questioning — as well as the work of questioners in the media such as Glenn Greenwald, Conor Friedersdorf, Spencer Ackerman, and Micah Zenko —  is acting as a catalyst to break the public and governmental mindset that allowed for the suspension of due process. Due process matters. If it hasn’t been proven that someone has broken the law why should they be punished for it? As humans we have inalienable rights. The fear of terrorism does not trump the right to be tried under the presumption of innocence.

The strength of Rand Paul’s argument means that defenders of the status quo have had to resort to spurious or ad hominem arguments to mount a defence of the President’s position — attacking Paul’s positions on other issues, for example. It was encouraging to see Rand Paul questioning the entire notion of targeted killings and signature strikes altogether, and not just worrying about the prospect of such affairs on American soil. Due process is preferable in all circumstances.  I would have preferred to see Osama bin Laden captured and tried, rather than killed.  Due process is not a sign of moral weakness, but a sign of cultural strength, of sanity, of civilisation.

The Obama administration must eventually understand that their position is untenable. Large swathes of the mainstream media are coming around to the idea that Rand Paul is asking important questions and that due process is more important than national security panic and threat inflation. Paul has struck a blow for the Constitution at the right moment, and to a judicial edifice that has become bloated and corrupt, treating too-big-to-fail bankers with impunity, while coming down like a tonne of bricks on minor intellectual property infractions. He has harnessed the image of a lone filibustering Senator standing up to the machine of the establishment to strike a blow to those who are trying to defend the indefensible. At the very least, Rand Paul has made real oversight of the drone program possible. Hopefully, the days of signature strikes and of targeted killings are numbered. Hopefully, the Constitution and Bill of Rights will reign supreme again in Washington D.C.

The Depressing Reality of Indefinite Detention

After all the promises from both Obama and Congressional leaders that indefinite detention for Americans would not be written into law, the 2013 National Defense Authorization Act contains exactly that.

What can we conclude from that? That both the executive branch including Barack Obama, Janet Napolitano and Eric Holder and majority elements of the legislative branch — the Senate voted 81-14, and the House voted 305-107 — want the power to detain Americans indefinitely without charge or trial. And why would they want the power if they didn’t intend to use it?

Ron Paul:

The now-infamous NDAA for fiscal year 2012, passed last year, granted the president the authority to indefinitely detain American citizens without charge, without access to an attorney, and without trial. It is difficult to imagine anything more un-American than this attack on our Constitutional protections. While we may not have yet seen the widespread use of this unspeakably evil measure, a wider application of this “authority” may only be a matter of time.

Historically these kinds of measures have been used to bolster state power at the expense of unpopular scapegoats. The Jewish citizens of 1930s Germany knew all about this reprehensible practice. Lately the scapegoats have been mostly Muslims. Hundreds, perhaps many more, even Americans, have been held by the US at Guantanamo and in other secret prisons around the world.

Rand Paul:

When you’re accused of a crime in our country you get a trial, you get a trial by a jury of your peers, no matter how heinous your crime is, no matter how awful you are, we give you a trial.

And children of those indefinitely detained during World War 2 have launched a legal challenge to the status quo:

The children of Japanese-Americans whose internment during World War II was upheld by the infamous Supreme Court ruling Korematsu v. United States are stepping into a new legal battle over whether the military can indefinitely detain American citizens.

Writing that their parents “experienced first-hand the injustice resulting from a lack of searching judicial scrutiny,” the children of Fred Korematsu and other Japanese-Americans who were interned filed a brief on Monday in support of a lawsuit against the National Defense Authorization Act of 2012. Critics say the law allows the military to lock Americans away without trial merely on suspicion of support for terrorist organizations.

“During WWII, President Roosevelt essentially issued the military a ‘blank check,’” Korematsu’s children wrote in a friend-of-the-court brief. The military’s orders, “to which the Court uncritically deferred, culminated in the internment. In reviewing the NDAA’s new detention provision, the courts cannot afford to mimic the wartime Supreme Court’s failure.”

Then, America was at war with nations. Once a peace treaty was signed, the vile, racist detention ended. But for those detained under an accusation of being a part of decentralised groups like al-Qaeda, or Wikileaks, or Anonymous there are no peace treaties, no definite end to hostilities.

And while the judiciary has so far thrown out indefinite detention as unconstitutional under the Fifth Amendment, this has not stopped the legislative and executive branches of government from bulldozing on. Obama, the “constitutional scholar” defends the principle of the indefinite detention of Americans. The neocon triumvirate of Lindsey Graham, John McCain and Joe Lieberman continue to demand it.

This is terrible. If evidence exists of lawbreaking, suspects can be charged and tried. If the government has no evidence that can stand up in court, it shouldn’t be in the business of detaining anyone.

Today the detained may be those accused of being members of al-Qaeda, Wikileaks, or Anonymous. Tomorrow, who knows who might find themselves in the crosshairs of indefinite detention — journalists, whistleblowers, dissidents. As Naomi Wolf noted when Judge Katherine Forrest first struck down indefinite detention:

Forrest asked repeatedly, in a variety of different ways, for the government attorneys to give her some assurance that the wording of section 1021 could not be used to arrest and detain people like the plaintiffs. Finally she asked for assurance that it could not be used to sweep up a hypothetical peaceful best-selling nonfiction writer who had written a hypothetical book criticizing US foreign policy, along lines that the Taliban might agree with. Again and again the two lawyers said directly that they could not, or would not, give her those assurances. In other words, this back-and-forth confirmed what people such as Glenn Greenwald, the Bill of Rights Defense Committee, the ACLU and others have been shouting about since January: the section was knowingly written in order to give the president these powers; and his lawyers were sent into that courtroom precisely to defeat the effort to challenge them. Forrest concluded: ”At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.

What’s Next in the Middle East?

While the missiles, planes and rockets fly over Gaza and Israel, both Hamas and the Israeli government have been engaged in a battle of social media.

Hamas:

And Israel:

It is a battle to shape the perceptions of the rest of the world.

The IDF appears so far to have the upper hand in terms of social media, having notched up 143,000 followers on Twitter, although Hamas’ al-Qassam Brigades are in swift pursuit having just climbed above 20,000 followers.

Yet to view this as a simple conflict between Hamas and Israel is too superficial. It ignores the history and the context. This is a much bigger and broader tapestry.

Glenn Greenwald writes:

Israel‘s escalating air attacks on Gaza follow the depressingly familiar pattern that shapes this conflict. Overwhelming Israeli force slaughters innocent Palestinians, including children, which is preceded (and followed) by far more limited rocket attacks into Israel which kill a much smaller number, rocket attacks which are triggered by various forms of Israeli provocations  — all of which, most crucially, takes place in the context of Israel’s 45-year-old brutal occupation of the Palestinians (and, despite a “withdrawal” of troops, that includes Gaza, over which Israel continues to exercise extensive dominion). The debates over these episodes then follow an equally familiar pattern, strictly adhering to a decades-old script that, by design at this point, goes nowhere.

And Michael Chussudovsky writes:

On November 14,  Hamas military commander Ahmed Jabari was murdered in a Israeli missile attack. In a bitter irony,  barely a few hours before the attack, Hamas received the draft proposal of a permanent truce agreement with Israel.

“Hours before Hamas strongman Ahmed Jabari was assassinated, he received the draft of a permanent truce agreement with Israel, which included mechanisms for maintaining the cease-fire in the case of a flare-up between Israel and the factions in the Gaza Strip.”(Haaretz, November 15, 2012)

F-16 fighter planes, Apache helicopters and unmanned drones were deployed. Israeli naval forces deployed along the Gaza shoreline were involved in extensive shelling of civilian targets.

While Israel continues to enforce extreme restrictions on the lives of Palestinians, it has been inevitable that organisations like Hamas who promise resistance against Israel and Zionism will thrive. And while Hamas has thrived, Israel has continued to impose sanctions and restrictions. Both sides have been locked into a cycle of brutal retaliation (and a particularly suicidal cycle for the Palestinians).

In the latest skirmishes, Hamas has inflicted three Israeli casualties in rocket strikes, the Israeli military has already assassinated two high level Hamas commanders, and carried out successful strikes on dozens of Gazan targets resulting in thirty deaths.

But Israel and Hamas share a deeply interwoven history. The WSJ notes:

“Hamas, to my great regret, is Israel’s creation,” says Avner Cohen, a Tunisian-born Jew who worked in Gaza for more than two decades. Responsible for religious affairs in the region until 1994, Mr. Cohen watched the Islamist movement take shape, muscle aside secular Palestinian rivals and then morph into what is today Hamas, a militant group that is sworn to Israel’s destruction.

Instead of trying to curb Gaza’s Islamists from the outset, says Mr. Cohen, Israel for years tolerated and, in some cases, encouraged them as a counterweight to the secular nationalists of the Palestine Liberation Organization and its dominant faction, Yasser Arafat’s Fatah. Israel cooperated with a crippled, half-blind cleric named Sheikh Ahmed Yassin, even as he was laying the foundations for what would become Hamas.

And co-operation has continued between Hamas and Israel, even while they throw rockets at each other, and even while Hamas continues to receive funds and weapons from Israel’s major rivals, including Iran. Upon Ahmed Jabari’s killing, Haaretz noted:

Israel killed its subcontractor in Gaza.

The political outcome of the operation will become clear on January 22, but the strategic ramifications are more complex: Israel will have to find a new subcontractor to replace Ahmed Jabari as its border guard in the south.

Co-operation between Hamas and Israel should not be surprising. The two factions of hardliners — on one side Hamas, and on the other side Netanyahu’s coalition — validate each other’s existence. Without a state of perpetual enmity, the hardliners would find themselves marginalised. Nothing strengthens Hamas in Palestine like an Israeli rocket attack, and nothing strengthens Likud and Yisrael Beitenu in Israel like a Palestinian rocket attack.

However, Israel’s co-operation with Hamas may now be at an end. The surprise strike on Jabari may well be a sign that Hamas is to be cast aside and driven out of Gaza. This seems like the beginning of a new era in the middle east.

Now that the American election is out of the way, Netanyahu may be stepping toward engaging with Iran.

John Glaser, writing for AntiWar.com lays out one theory:

Israel, lest we forget, instigated this resumption of missile exchanges last week when two Palestinian civilians were shot and killed and Israeli tanks intruded into Gaza, prompting Gaza militants to respond by targeting Israeli soldiers, which then gave Israel an excuse to unleash successive airstrikes. And Israel had numerous chances to pacify the situation, considering Hamas publicly offered to establish a total ceasefire and Egypt appeared about to broker a truce between the two. Israel has intentionally inched towards escalation from the beginning. Are we to believe this isn’t strategic?

A ground invasion, and a reoccupation of Gaza by the IDF could be the first step toward engaging Iran. It would allow for Israel to dislodge Hamas, and create a buffer between Israel and Egypt, and the forces of the Muslim Brotherhood. The Morsi government in Egypt has pledged to support the Palestinians — but is this a bluff? Does Egypt have the capability or the desire to really oppose Israel? Does Iran really have the capability or the desire to oppose Israel in a more active way? Ultimately, Iran may have no choice, as Netanyahu is certain that they are on the nuclear threshold.

The world is in motion. Israel is playing its cards. The intent? To create facts on the ground that cement Israel’s position as the dominant power in the middle east for the next century.

Now, Iran’s move.

Glenn Greenwald on Indefinite Detention

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.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:

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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:

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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.

Time to Get Out of the Middle East

It takes a lot of time and effort to try to understand American counter-terrorism policy today.

Personally, I think the status quo is like trying to treat a cocaine overdose with methamphetamine. It’s like trying to cure chlamydia by having sex with multiple random strangers in a park. It’s like trying to cure a broken nose by punching oneself in the face.

Or, as Glenn Greenwald puts it:

I absolutely believe that another 9/11 is possible. And the reason I believe it’s so possible is that people like Andrew Sullivan — and George Packer — have spent the last decade publicly cheering for American violence brought to the Muslim world, and they continue to do so (now more than ever under Obama). Far from believing that another 9/11 can’t happen, I’m amazed that it hasn’t already, and am quite confident that at some point it will. How could any rational person expect their government to spend a full decade (and counting) invading, droning, cluster-bombing, occupying, detaining without charges, and indiscriminately shooting huge numbers of innocent children, women and men in multiple countries and not have its victims and their compatriots be increasingly eager to return the violence?

Isn’t it painfully obvious? The interventionist policies — occupation, drone strikes, cluster-bombing, indefinitely detention, false vaccination programs and so forth — in the middle east advocated by both “liberal” and “conservative” hawks that are supposed to prevent terrorism are creating anger, creating enemies, and creating terrorists. I too am amazed another 9/11 hasn’t happened. I despise jihadism and Islamism. It is contrary to everything I stand for. That’s exactly why I oppose a foreign policy that serves as a hugely effective recruiting tool for the totalitarian jihadists. 

Yemeni lawyer Haykal Bafana explained the rationale last month:

Dear Obama, when a U.S. drone missile kills a child in Yemen, the father will go to war with you, guaranteed. Nothing to do with Al Qaeda.

Or as convicted terrorist Faisal Shahzad put it:

Well, the drone hits in Afghanistan and Iraq, they don’t see children, they don’t see anybody. They kill women, children, they kill everybody. I am part of the answer to the U.S. terrorizing the Muslim nations and the Muslim people.  And, on behalf of that, I’m avenging the attack.  Living in the United States, Americans only care about their own people, but they don’t care about the people elsewhere in the world when they die.

Or as former CIA counter-terrorism expert Michael Scheuer noted:

The idea that has been pushed by President Clinton and President Bush and Mr. Cheney and Barack Obama and Senator McCain, that America is being attacked [for its freedom] is a disservice to the population of the United States. This war is not against Americans because we’re Americans, it’s motivated by the activities of our government and its allies in the Muslim world.

So why do we keep doing this? Two reasons: hubris and greed.

First, the hubris. We know Ron Paul was booed in South Carolina for advocating that we should do to others as we would like done to us:

My point is if another country does to us what we do others, we’re not going to like it very much. So I would say that maybe we ought to consider a golden rule in — in foreign policy. Don’t do to other nation what we don’t want to have them do to us.

But that’s just the propagandistic nature of being a superpower. Years of prosperity, military supremacy and pro-war propaganda have made it normal to believe strongly in the idea that America is intrinsically better, and wherever America goes America brings freedom, and anyone who doesn’t agree with that needs to be waterboarded until they do.

Yet however many times as the phrase “they hate us because we are free” is repeated, mantra-like by a Rick Santorum or a Newt Gingrich, it does not become truer. It is just an illusion, just a fantasy. While the jihadis were always anti-American, anti-democratic and anti-capitalistic, Osama bin Laden, Ayman al-Zawahiri and Sayyid al-Qutb — the fathers and grandfathers of modern Wahhabism, jihadism and al-Qaeda — became anti-American militants because of America’s role in the middle east.

As bin Laden himself said:

Those who kill our women and innocent, we kill their women and innocent, until they refrain.

And even more clearly:

Free men do not forfeit their security, contrary to Bush’s claim that we hate freedom. If so, then let him explain to us why we don’t strike Sweden, for example.

Second, the greed. America is in the middle east because America likes cheap energy. That myth of America as liberators flourished first as a justification for America’s petrodollar foreign policy.

And people get rich from America being at war — so far in the region of $4 trillion has gone to fighting since 9/11. A lot of weapons contractors are happy with the status quo.

So the military-industrial complex — the lobbyists, the weapons makers, the media — may accept it if Obama kills 14 women and 21 children to get one suspected terrorist. More terrorism means more weapons spending. For the lucky few it’s a self-perpetuating stairway to riches. Yet for wider society it means spending time, money and effort on war, instead of on domestic prosperity. It means the constant threat of terrorism. And it means the loss of our liberty, as the security state adopts increasingly paranoid anti-terrorism measures.

We should do to others as we would have done to ourselves. That means — unless we are comfortable with the idea of ourselves living under military occupation and drone strikes — getting out of the middle east, and letting that region solve its own problems — forget another costly and destructive occupation in Syria. Slash the war and occupation spending, and redirect the money to making America independent of middle eastern energy and resources.

Judge Katherine Forrest is a Modern American Hero

Sometimes, the greatest deeds are done by those who are just doing their jobs, like Judge Katherine Forrest who last week struck down the indefinite detention provision (§1021) of the National Defense Authorization Act (NDAA).

It would be all too easy in this age of ever-encroaching authoritarianism in America for a judge ruling on a matter like this to just go with the government line and throw water over the plaintiffs. After all, telling truth to power has consequences. Forrest was appointed by Obama, but after this ruling one wonders whether she is about to meet a career dead-end. Power — especially narcissistic power — does not like being told uncomfortable truths.

Everything about this case is shameful; it should be obvious to anyone who can read the Constitution that indefinite detention without trial (just like assassination without trial — something else that Obama and his goons have no problem practicing and defending) is hideously and cruelly unconstitutional. It defecates upon both the words and the spirit of the document.

It is directly and completely in contravention to the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is shameful that this law was proposed, it is shameful that any legislator would vote for it, and it is shameful that the President would sign it into law, albeit with a flimsy signing-statement claiming that he would not use the indefinite detention provision against American citizens.

More shameful still is the fact that when this challenge was brought that the Obama administration tried to dismiss it on a technicality — they tried to make the case that because none of the plaintiffs were to be indefinitely detained that they could not challenge the law. Judge Forrest’s investigation of this claim was revealing. Naomi Wolf notes:

Forrest asked repeatedly, in a variety of different ways, for the government attorneys to give her some assurance that the wording of section 1021 could not be used to arrest and detain people like the plaintiffs. Finally she asked for assurance that it could not be used to sweep up a hypothetical peaceful best-selling nonfiction writer who had written a hypothetical book criticizing US foreign policy, along lines that the Taliban might agree with. Again and again the two lawyers said directly that they could not, or would not, give her those assurances. In other words, this back-and-forth confirmed what people such as Glenn Greenwald, the Bill of Rights Defense Committee, the ACLU and others have been shouting about since January: the section was knowingly written in order to give the president these powers; and his lawyers were sent into that courtroom precisely to defeat the effort to challenge them. Forrest concluded: “At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [section] 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.

Very simply, it is now obvious that the NDAA was written not to deal with terrorists or potential terrorists. After all, if the government has evidence that an individual or group is planning to commit a terrorist attack then they do not need an indefinite detention provision; all they need is to arrest such individuals and prove beyond reasonable doubt before a jury of their peers that a crime has been committed. That is how justice works — if the evidence exists you can bring a successful prosecution. After all if they do not have the evidence to prove that a group or individual was planning to commit an act of terrorism then they have no business arresting them or charging them with any offense. Suspects — lest we forget — are innocent until proven guilty.

These new powers have nothing to do 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 be 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.