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.

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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:

forest ruling

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:

forest ruling 2

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.