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Congress reaffirms indefinite detention of Americans under NDAA

RT | May 22, 2014

The US House of Representatives approved an annual defense spending bill early Thursday after rejecting a proposed amendment that would have prevented the United States government from indefinitely detaining American citizens.

An amendment introduced in the House on Wednesday this week asked that Congress repeal a controversial provision placed in the National Defense Authorization Act of 2012 that has ever since provided the executive branch with the power to arrest and detain indefinitely any US citizen thought to be affiliated with Al-Qaeda or associated organizations.

“This amendment would eliminate indefinite detention in the United States and its territories,” Rep. Adam Smith (D-Washington), a co-author of the failed amendment, said during floor debate on Wednesday, “So basically anybody that we captured, who we suspected of terrorist activity, would no longer be subject to indefinite detention, as is now, currently, the law.”

“That is an enormous amount of power to give the executive, to take someone and lock them up without due process,” Smith added. “It is an enormous amount of power to grant the executive, and I believe places liberty and freedom at risk in this country.”

Pres. Barack Obama vowed when he signed the 2012 NDAA into law on December 31, 2011 that he would not use the indefinite detention powers provided to him by Congress. When that provision was challenged in federal court, however, the White House fought back adamantly and appealed a District Court ruling that initially reversed the indefinite detention clause, eventually sending the challenge to the Supreme Court where it stalled until earlier this month when the justices there said they would not consider the case.

The bill sponsored by Smith and co-author Rep. Paul Broun (R-Georgia) would have given the legislative branch a chance to repeal the same provisions that SCOTUS declined to hear, but the bipartisan amendment failed on a vote of 191 to 230.

A separate proposal from Rep. Smith meant to expedite the shut-down of the military prison at Guantanamo Bay, Cuba was also rejected early Thursday; an amendment from Rep. Dennis Ross (R-Florida) intended to cut federal funding for recreational facilities at Gitmo, however, was approved in the NDAA draft that left the House on Thursday.

On Twitter, Smith said he was “disappointed” but “won’t stop fighting to pass this critical legislation.”

And while the White House is unlikely to abandon its own fight with regards to keeping the indefinite detention provision intact, the Obama administration threatened to veto this year’s NDAA because it would continue to complicate the president’s promise to close the Guantanamo Bay facility — a vow older than his own administration.

“If this year’s Defense Authorization bill continues unwarranted restrictions regarding Guantanamo detainees, the president will veto the bill,” White House Press Secretary Jay Carney said in a statement Wednesday evening.

When the 2011 NDAA passed Congress with the controversial indefinite detention provision included, the White House said at the time that it would veto the legislation before Pres. Obama eventually balked.

May 22, 2014 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | , , , , , | Leave a comment

No austerity for military budget in 2014

Press TV – December 28, 2013

In an era of bipartisan agreement on austerity cuts to vital services and workers’ benefits, US military-industrial-complex spending will continue into the new year untouched.

President Barack Obama signed into law on Thursday the National Defense Authorization Act for the fiscal year 2014 that allots $526.8 billion for the Pentagon’s budget and $80 billion for the war in Afghanistan—totaling nearly $607 billion in defense-related spending.

This is nearly $30 billion more than was agreed to in the bipartisan federal budget deal that was also signed by Obama on Thursday.

“The passage of a National Defense Authorization Act (NDAA) that calls for $30 billion more for the Pentagon and allied agencies than is contained in the recent budget deal passed by both houses of Congress is just the latest indication that defense hawks continue to live in their own world, untroubled by fiscal constraints,” said William Hartung, director of the Arms & Security Project at the Center for International Policy.

The bill does include an ease of restrictions on transferring Guantanamo Bay US military prison inmates to the custody of other countries, while banning transfers to the United States, in what human rights advocates are calling a limited victory.

“We hope that President Obama will make swift use of the new NDAA provisions to actually act on his removal of the ban,” reads an official statement from the Center for Constitutional Rights, which has battled unlawful detentions at Guantánamo for the past 11 years.

“Despite President Obama’s announcement in May that he would lift his self-imposed ban on transfers to Yemen, seven months later not a single Yemeni has been released,” the statement warns.

The bill also introduces limited protections for survivors of sexual assault within the US military, yet keeps power over legal cases within the chain of command—which survivors and their advocates say is inadequate in a system where higher ranking service members have near impunity for sexual assaults perpetrated down the chain of command.

Critics slammed the NDAA as a military handout at a time of great human need.

“The bill is a massive spending program on the war economy with no justification in a time of austerity and limited security threats,” writes D.S. Wright for FiredogLake.

“Washington’s spending priorities are upside down: continuing to fund the Afghan war and the taxpayer ripoff F-35 warplane while cutting funding for human needs,” said Robert Naiman, policy director for Just Foreign Policy, in an interview with Common Dreams.


December 28, 2013 Posted by | Militarism, Progressive Hypocrite | , , , , | 1 Comment

Audio feed cut during 9/11 trial hearing, prompting suspicions of external censorship

RT | January 29, 2013

The first day of a pretrial hearing for five men accused of plotting the September 11 attacks was swirling with intrigue on Monday after the audio feed at a Guantanamo war crimes court was abruptly cut off.

The incident prompted the military judge to ask whether someone outside the courtroom was censoring the hearing.

Observers were listening to the trial behind a glass window when the feed was suddenly cut. The audio went silent when David Nevin, a lawyer for Khalid Sheik Mohammed – the alleged mastermind of the 9/11 attacks – asked if the lawyers and judges needed to meet in closed session before considering a request by the defense.

In previous hearings for alleged Al-Qaeda operatives sentenced to CIA prisons, a court security officer controlled a button which muffled audio to spectators when secret information was disclosed. During the censoring process, a red light flashes and observers hear nothing but static.

But that wasn’t the case this time around, as the judge’s reaction made clear once the sound was restored moments later.

“If some external body is turning things off, if someone is turning the commissions off under their own views of what things ought to be, with no reason or explanation, then we are going to have a little meeting about who turns that light on or off,” Army Colonel James Pohl told the courtroom.

Pohl seemed to be addressing the prosecution team, saying that Nevin had only referred to the caption of an unclassified document asking the judge to preserve as evidence the secret CIA prisons where the defendants say they were tortured, Reuters reported.

Nevin and the other defense attorneys said they wanted to know whether there was a third party monitoring the proceedings, and whether that entity could be listening to private communications between the lawyers and their clients, the Washington Post reported.

Justice Department lawyer Joanna Baltes said she could explain the reason behind the audio cut – but not in public. Pohl said he would meet in closed session with the lawyers and reopen the public part of the hearing on Tuesday. If the reason behind the cut could be explained to the public, he would do so then.

Mohammed and his four co-defendants are accused of training and aiding the hijackers who flew commercial airliners into the World Trade Center in New York, the Pentagon and a Pennsylvania field on September 11, 2001.

They could be sentenced to death if convicted on charges including terrorism, attacking civilians and murdering 2,976 people.

The men were among the suspected Al-Qaeda captives who were moved across borders without judicial review, and held and interrogated in secret CIA prisons overseas during the presidency of George W. Bush.

The CIA has acknowledged that Mohammed was subjected to the controversial interrogation practice known as waterboarding. The defendants also claimed they were subjected to threats, sleep deprivation and being chained in painful positions.

The defense lawyers have argued that the CIA’s treatment of the defendants constituted illegal pretrial punishment, and “outrageous government misconduct” that could justify dismissal of the charges, or at the very least spare the defendants from execution if convicted.

There are currently 166 detainees at Guantanamo Bay detention camp, including Mohammed. In 2009, US President Barack Obama ordered the prison to be shut within a year. However, it is still open and operational.

Guantanamo remaining open is yet another example of Congress overpowering the president – the prison was bundled together with the National Defense Authorization Act, which serves as the overall US defense budget. Obama has the power to veto the entire act, but not to individually challenge the administration of Guantanamo Bay.

Obama has threatened such a veto several times, but backed down on every occasion.

January 29, 2013 Posted by | Civil Liberties, Deception, False Flag Terrorism, Full Spectrum Dominance | , , , , , , | 1 Comment

Americans already detained under NDAA?

RT | September 28, 2012

The plaintiffs that are suing US President Barack Obama over his insistence on keeping the National Defense Authorization Act on the books said Thursday that they fear Americans are already being held indefinitely and without trial under the NDAA.

US President Barack Obama refrained from even once commenting on his efforts to keep his power to indefinitely detain Americans without charge when he appeared on recently and urged users to “Ask Me Anything.” His opponents in the matter aren’t shying away from speaking up online, though.

The plaintiffs in the case to ban the White House from imprisoning Americans indefinitely without trial or due justice took to Reddit on Thursday to answer questions involving the National Defense Authorization Act of Fiscal Year 2012, or the NDAA, and blamed corrupt media and a broken governmental establishment for letting the Obama administration maintain its [power] to book Americans in military prisons without charge.

On December 31, 2011, President Obama authorized the NDAA, and with it he approved a controversial provision that permits the government to indefinitely detain US citizens without trial for mere allegations of ties to suspected terrorists. Journalists and activists filed a lawsuit against the president earlier this year over the provision, Section 1021, which US Federal Judge Katherine Forrest in turn agreed was unconstitutional. Last month Judge Forrest decided that an earlier, temporary injunction on the clause should be made permanent, but the Obama Justice Department pleaded for an emergency stay only hours later. A lone federal appeals judge has since heard that plea and has momentarily blocked Judge Forrest’s injunction. Now pending the results of an appeals panel’s formal investigation, the NDAA’s indefinite detention provision remains on the books.

On Thursday, the plaintiffs in the case — journalist Chris Hedges, activist Tangerine Bolen, Pentagon Papers leaker Dan Ellsberg, their attorneys and others — told users of Reddit to ask them anything.

“The Obama DOJ has vigorously opposed these efforts, and immediately appealed her ruling and requested an emergency stay on the injunction – claiming the US would incur ‘irreparable harm’ if the president lost the power to use Section 1021 – and detain anyone, anywhere until the end of hostilities on a whim. This case will probably make its way to the Supreme Court,” the plaintiffs acknowledged in their introduction.

From there, President Obama’s opponents in federal court combed through hundreds of posts to answer questions regarding the NDAA over the course of several hours. And although the plaintiffs have not exactly been silent with the status of their fight since suing the White House earlier this year, the insight they offered on Reddit provided a fresh update on the case against the NDAA amid some of the government’s most unusual legal maneuvers yet.

Offering his take on the case, Hedges said that he even believes the NDAA’s indefinite detention clause is already being used to imprison Americans, “because they filed an emergency appeal.”

“If the Obama administration simply appealed it, as we expected, it would have raised this red flag,” Hedges added. “But since they were so aggressive it means that once Judge Forrest declared the law invalid, if they were using it, as we expect, they could be held in contempt of court. This was quite disturbing, for it means, I suspect, that US citizens, probably dual nationals, are being held in military detention facilities almost certainly overseas and maybe at home.”

“The signing statement is the most ridiculous part to this for me. He writes this statement saying he’s not happy about the power existing, but then his administration fights so hard to keep that specific power in place,” a Reddit user responded.

“If Obama didn’t want it to happen, he would not have signed it, especially after stating that he would veto it,” co-counsel Carl Mayer explained. Mayer has represented the plaintiffs in the case of Hedges v. Obama and said that he plans on continuing his pursuit to take indefinite detention off the books.

“We will do whatever it takes,” Mayers added. “We are prepared for a Supreme Court battle.”

Activist and journalist Tangerine Bolen is also insistent on prevailing over the Obama administration, but says “The biggest obstruction to our winning this case . . . is our broken systems.” Bolen blames a lack of media coverage, insufficient public awareness “and the government behaving very badly, even in court, on the record,” for the difficulties the plaintiffs have had to endure, adding that the Obama administration’s constant missteps have been noticed by no one except “seven plaintiffs, four attorneys, one federal judge and the activists who have been following this case.”

“Amazing,” she added.

Journalist Chris Hedges extrapolated on Bolen’s opinion, singling out “a corporate-owned system of information” for not informing Americans that they can be imprisoned without trial at this very moment.

“MSNBC, which is a propaganda arm of the Democratic establishment, just as Fox is a propaganda arm of the Republican establishment, is not going to raise this as Obama is as guilty as Romney. If we had a healthy press this would have gotten more coverage, although the print media, and in particular my old paper the NY Times, finally did good coverage,” Hedges wrote. […]

A three-judge appeals panel is expected to soon weigh in on the stay placed on Judge Forrest’s injunction, in the meantime keeping Section 1021 and the rest of the NDAA applicable to every American. – Full article

September 29, 2012 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | , , , , , , | 1 Comment

US government restores indefinite detention without trial

Press TV – September 19, 2012

The American government has successfully appealed a ruling by a district court banning indefinite detention of suspects without due process, re-instituting the controversial law that contradicts the US Constitution, Press TV reports.

The restoration of the law allows the Obama administration to hold suspects, even American citizens, captive without trial at military prison facilities such as the notorious Guantanamo Bay in Cuba for as long as they desire.

The provision is part of the National Defense Authorization Act (NDAA), signed into law by US President Barack Obama in 2011. The controversial bill further extends surveillance powers of various American law enforcement institutions, allowing the US military forces around the world to seize any non-combatant foreign individual across the globe.

US Civil Rights Attorney Ron Kuby describes the latest ruling as another blow to American civil liberties, insisting that it grants the government and its military forces too much authority.

This is while US District judge Katherine Forrest dismissed NDAA last week as “deeply flawed,” declaring it unconstitutional on the basis that it violates the 1st and fifth amendments. The Obama administration, however, appealed the verdict passed down by Judge Forrest, claiming that her decision has put the US military operations around the world in jeopardy.

Following up on Obama administration’s legal challenge, US Appeals Judge Raymond Lohier agreed with the government on Tuesday and lifted the ban, exposing American natives just as vulnerable to such arbitrary arrests as hundreds of individuals living in other countries that may be detained after being labeled as ‘a terrorist’ by American authorities or military forces.

International human rights groups insist that more than 700 people across the globe have been kidnapped by the US authorities and transported to detention facilities in different parts of the world. The practice, often referred to as Rendition, gained international attention with the case of Khalid El Masri – a German citizen who was tortured in Afghanistan for months before being released in 2004.

A number of US legal experts emphasize, meanwhile, that even the US citizens can now be confronted by a similar plight no matter where they may reside. The fight, however, is far from over on the NDAA issue. The stay on this provision is only effective until September 28th, when the American government will have to defend it before a three judge appeals panel.

Many observers believe that the case will most likely end up in the US Supreme court.

Video Report

September 19, 2012 Posted by | Civil Liberties, Progressive Hypocrite | , , , | 1 Comment

White House demands military prisons for Americans under NDAA

RT | September 17, 201

The White House has asked the US Second Circuit Court of Appeals to place an emergency stay on a ruling made last week by a federal judge so that the president’s power to indefinitely detain Americans without charge is reaffirmed immediately.

On Wednesday, September 12, US District Court Judge Katherine Forrest made permanent a temporary injunction she issued in May that bars the federal government from abiding by the indefinite detention provision in the National Defense Authorization Act for Fiscal Year 2012, or NDAA. Judge Forrest ruled that a clause that gives the government the power to arrest US citizens suspected of maintaining alliances with terrorists and hold them without due process violated the Constitution and that the White House would be stripped of that ability immediately.

Only hours after Judge Forrest issued last week’s ruling, the Obama administration threatened to appeal the decision, and on Monday morning they followed through.

At around 9 a.m. Monday, September 17, the White House filed an emergency stay in federal appeals court in an effort to have the Second Circuit strip away Judge Forrest’s ruling from the week earlier.

“Almost immediately after Judge Forrest ruled, the Obama administration challenged the decision,” writes Chris Hedges, a Pulitzer Prize-winning journalist that is listed as the lead plaintiff in the case. According to Hedges, the government called Judge Forrest’s most recent ruling an “extraordinary injunction of worldwide scope,” and Executive Branch attorneys worked into the weekend to find a way to file their stay.

“The Justice Department sent a letter to Forrest and the Second Circuit late Friday night informing them that at 9 a.m. Monday the Obama administration would ask the Second Circuit for an emergency stay that would lift Forrest’s injunction,” Hedges writes. “This would allow Obama to continue to operate with indefinite detention authority until a formal appeal was heard. The government’s decision has triggered a constitutional showdown between the president and the judiciary.”

Attorney Carl Mayer, a counsel for Hedges and his co-plaintiffs, confirmed to RT early Monday that the stay was in fact filed with the Second Circuit.

“This may be the most significant constitutional standoff since the Pentagon Papers case,” Carl Mayer says in a separate statement posted on Mr. Hedge’s blog.

Bruce Afran, who serves as co-lead counsel along with Mayer, tells Hedges that the White House could be waging a war against the injunction to ensure that the Obama administration has ample time to turn the NDAA against any protesters participating in domestic demonstrations.

“A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the US and saying that DHS is looking for the Islamic leaders of these likely riots,” Afran tells Hedges. “It is my view that this is why the government wants to reopen the NDAA — so it has a tool to round up would-be Islamic protesters before they can launch any protest, violent or otherwise. Right now there are no legal tools to arrest would-be protesters. The NDAA would give the government such power. Since the request to vacate the injunction only comes about on the day of the riots, and following the DHS bulletin, it seems to me that the two are connected. The government wants to reopen the NDAA injunction so that they can use it to block protests.”

Hedges, who has previously reported for papers including the New York Times and the Christian Science Monitor, argued that his job as a journalist requires him to routinely interact and converse with persons that may be considered terrorists in the eyes of the US government.

Under the NDAA, Americans “who was part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners” can be held in prison cells “until the end of hostilities,” vague verbiage that essentially allows for those suspect of such associations to be decided under the discretion of US President Barack Obama or any federal agent underneath him.

“Because the language is so vague in this law,” Mr. Mayer explains to RT, “if any journalist or activist is seen as reporting or offering opinions about groups that could somehow be linked not just to al-Qaeda but to any opponent of the United States or even opponents of our allies”

“I spent many years in countries where the military had the power to arrest and detain citizens without charge,” Hedges wrote when he first filed his suit in January. “I have been in some of these jails. I have friends and colleagues who have ‘disappeared’ into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.”

Monday morning, Hedges once more responded to the White House’s relentless attempts to reauthorize powers granted under the NDAA, asking, “If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future?”

“The decision to vigorously fight Forrest’s ruling is a further example of the Obama White House’s steady and relentless assault against civil liberties, an assault that is more severe than that carried out by George W. Bush,” writes Hedges. “Obama has refused to restore habeas corpus. He supports the FISA Amendment Act, which retroactively makes legal what under our Constitution has traditionally been illegal — warrantless wire tapping, eavesdropping and monitoring directed against US citizens. He has used the Espionage Act six times against whistle-blowers who have exposed government crimes, including war crimes, to the public. He interprets the 2001 Authorization to Use Military Force Act as giving him the authority to assassinate US citizens, as he did the cleric Anwar al-Awlaki. And now he wants the right to use the armed forces to throw U.S. citizens into military prisons, where they will have no right to a trial and no defined length of detention.”

In his latest blog post, Hedges acknowledges, “The government has now lost four times in a litigation that has gone on almost nine months.”

September 17, 2012 Posted by | Civil Liberties, Progressive Hypocrite | , , , , | 2 Comments

Obama fights ban on indefinite detention of Americans

RT | August 7, 2012

The White House has filed an appeal in hopes of reversing a federal judge’s ruling that bans the indefinite military detention of Americans because attorneys for the president say they are justified to imprison alleged terrorists without charge.

Manhattan federal court Judge Katherine Forrest ruled in May that the indefinite detention provisions signed into law late last year by US President Barack Obama failed to “pass constitutional muster” and ordered a temporary injunction to keep the military from locking up any person, American or other, over allegations of terrorist ties. On Monday, however, federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a claim with the 2nd US Circuit Court of Appeals in hopes of eliminating that ban.

The plaintiffs “cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention,” Obama’s attorneys insist. With that, the White House is arguing that as long as the indefinite detention law hasn’t be enforced yet, there is no reason for a judge to invalidate it.

Reuters reports this week that the government believes they are justified to have the authorization to lock alleged belligerents up indefinitely because cases involving militants directly aligned against the good of the US government warrants such punishment. Separate from Judge Forrest’s injunction, nine states have attempted to, at least in part, remove themselves from the indefinite detention provisions of included in the National Defense Authorization Act for Fiscal Year 2012, or NDAA.

In section 1021 of the NDAA, the president’s authority to hold a terrorism suspect “without trial, until the end of the hostilities” is reaffirmed by Congress. Despite an accompanying signing statement voicing his opposition to that provision, President Obama quietly inked his name to the NDAA on December 31, 2011. In May, however, a group of plaintiffs including notable journalists and civil liberty proponents challenged section 1021 in court, leading to Justice Forrest to find it unconstitutional one month later.

“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote in her 68-page ruling. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

At the time Justice Forrest made her injunction, attorney Carl Mayer told RT on behalf of the plaintiffs that, although he expected the White House to appeal, “It may not be in their best interest.”

“[T]here are so many people from all sides of the political spectrum opposed to this law that they ought to just say, ‘We’re not going to appeal,’” Mayer said. “The NDAA cannot be used to pick up Americans in a proverbial black van or in any other way that the administration might decide to try to get people into the military justice system. It means that the government is foreclosed now from engaging in this type of action against the civil liberties of Americans.”

The original plaintiffs, who include Pulitzer Prize-winner Chris Hedges, have asked Justice Forrest to make her injunction permanent. Oral arguments in the case are expected to begin this week.

August 7, 2012 Posted by | Civil Liberties, Progressive Hypocrite | , , , , , | 2 Comments

Judge Forrest and the NDAA

By CARL J. MAYER | CounterPunch | June 11, 2012

In 1774 the American patriot John Adams said of John Witherspoon (the Scottish Presbyterian Minister and co-signer of the Declaration of Independence): “He is as high a Son of Liberty, as any man in America.”

Future generations may well say of United States Federal District Court Judge Katherine B. Forrest that she is as high a Daughter of Liberty as any person in the land.

Judge Forrest, of the Southern District of New York in Manhattan, issued a ruling on May 16 that will be regarded as a watershed moment in reversing a decade-long bi-partisan assault on civil liberties and the Constitution. Her honor took the extraordinary step of issuing a preliminary injunction and striking down as unconstitutional a provision of the National Defense Authorization Act (NDAA) that would have allowed for the indefinite detention of United States citizens in military prisons without trial or counsel.

This so-called “Homeland Battlefield Act” was thought by many to be the latest and most egregious incursion on the liberties of all Americans, coming on the heels of warrantless wire-tapping, the USA Patriot Act, drones flying over American cities and the use by American police of Para-military garb and tactics.

Like John Adams and John Witherspoon, Forrest can hardly be characterized as a radical. A former entertainment lawyer with the powerhouse corporate law firm of Cravath, Swaine and Moore, Forrest is an Obama appointee.

Nor can her opinion be characterized as precipitous or far-flung. To the contrary, Judge Forrest’s sober 68-page ruling was firmly rooted in established First Amendment and due process precedent. Judge Forrest almost had no choice but to strike down the offending statute because its terms were so vague: the law would have captured anyone accused of giving “substantial support” to Al-Qaeda or “associated forces.” These terms are not only inherently nebulous and imprecise, but they were not defined in the statute. Like most lawyers, in all my years of legal practice, I have never encountered a law that does not have a definitional section: the NDAA did not.

To remove any doubt, at trial Judge Forrest cross-examined the United States Government lawyers about whether they could give assurances to the plaintiffs in the case – all of whom were either journalists or activists with no ties to terrorists, other than reporting – that their speech and conduct would not subject them to the provisions of the NDAA. Repeatedly, Justice Department lawyers refused, in open court, on the record, to offer any such assurances. As Judge Forrest wrote in her opinion: “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 [of the NDAA]. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”

The government could appeal Judge Forrest’s ruling, but the plaintiffs in the case have publicly called on the President, a former constitutional scholar himself, to announce that he will abide by the sound reasoning of Judge Forrest, forgo an appeal and voluntarily enter into a permanent injunction that would forever ensure that American’s rights to trial by jury would be secure.

Candidate Romney would be wise to take a similar position. Indeed as many Republicans oppose the NDAA as Democrats. In fact, a coalition of conservative and Republican groups took the extraordinary step of filing an amicus curiae brief in Federal District Court. The signatories to the brief included a Virginia Republican State Senator, the Conservative Legal Defense and Education Fund, and the Gun Owners of America.

The Congress, just days after Judge Forrest’s ruling, failed to pass an amendment to the NDAA that would have fixed some of the constitutional problems with the statute. On May 25, the Friday before the Memorial Day weekend, the Justice Department filed a motion for reconsideration (which are virtually never granted) before Judge Forrest signaling the Administration’s determination to keep fighting to overturn decades of constitutional jurisprudence and enshrine indefinite, undefined detention as the law of the land.

The most astonishing moment at trial before Judge Forrest was the sound of silence. The government refused to call any witnesses from any of the national security agencies that could have explained why undermining the civil liberties of civilians in this country is necessary to fight terrorism. The government simply cannot explain why habeas corpus and trial by jury should be jettisoned when these concepts date back hundreds of years and were enshrined by the Supreme Court during active war time as far back as the Civil War.

On June 6, 2012, in another courageous opinion, Judge Forrest denied the Obama administration’s request for reconsideration and made clear that her order is so broad that it applies to every area of the country and by implication protects all journalists and activists in America.

The battle to restore civil liberties in America has begun.

Carl J. Mayer, with Bruce Afran, was lead-counsel representing the plaintiffs in Hedges v. Obama, decided by Judge Forrest on May 16, 2012.

June 11, 2012 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | , , , , | Comments Off on Judge Forrest and the NDAA

Israeli Supreme Court Rubber Stamps Shin Bet Impunity

By Richard Silverstein | Tikun Olam | May 26, 2012

Shiri Krebs is a PhD student at Stanford University law school. She was an international law advisor to Israeli Supreme Court president Dorit Beinisch and a researcher at the Israel Democracy Institute.  She published a paper (for Hebrew readers, Haaretz offers this story) this month in the Vanderbilt Journal of Transitional Law about the rubber stamp offered by the Israel’s highest court to the security services in cases of administrative detention.  She pointedly argues against the reputation the Court enjoys for being “interventionist” in protecting the rights of security detainees and offering a robust defense of democratic rights.

Surprisingly, she notes that there are those in the legal community who are proposing that Israel’s system both of administrative detention and judicial review are being offered as a model for other countries facing terror threats. In fact, the National Defense Authorization Act codifies a U.S. version of indefinite administrative detention as Reuters notes:

The section authorizes indefinite military detention for those deemed to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

Does a journalist who objects to targeted killings of al-Qaeda operatives in Yemen or Pakistan “substantially support” it?  What about supporting Bradley Manning or Wikileaks?  You say no and I say no, but neither of us will be interpreting the law.  The Justice Department, just like the Israeli state prosecutor, will be.  What will its standard be?  Thankfully, a federal judge issued a stay regarding enforcement of this provision of the law.

Krebs rejects Israel as a viable legal model:

…They [the research and interviews conducted in preparing the article] cast doubt on arguments that Israel’s detention model is one that should be emulated by other countries…The legal framework [of administrative detention and judicial review] itself makes independent judicial review of detention exceedingly challenging, if not impossible.

The paper is especially important in light of the hunger strikes of 1,600 Palestinian prisoners who were protesting precisely the types of arbitrary administrative detentions Krebs discusses in her paper.  The protesting prisoners complained about the arbitrary nature of their detention and the fact that often the evidence against them was secret both to them and their lawyers.  In essence, they neither knew who was their accuser, what they were accused of, nor what evidence was offered.  Six-month sentences could be renewed without offering any new evidence and renewed virtually forever.  A number of prisoners were held for years under similar terms.

Krebs’ research examines 322 cases brought before the High Court between 2000-2010, in which Palestinian detainees appealed against their sentences.  Of these, the Court reversed the sentences in none of the cases:

…Out of the 322 cases decided by the Israeli Supreme Court in this period, not a single case resulted in a release order, and in none of the cases did the Court openly reject the secret evidence.

In one-third of the cases, the detainee would drop his appeal after a deal was struck with the state attorney.  But such deals were inherently one-sided since the State controlled virtually the entire process and made an offer the defense couldn’t afford to refuse: the defense knew the Court would never reverse the security services and had to accept the crumbs it was offered.

When the Court does render its decisions in these cases, the justices themselves rarely get to see the evidence the State used to detain the suspect.  They rarely know much, if anything about the detainee or his case.  They rarely conduct an adversarial inquiry into the charges.  Their decisions often run only a few lines, if that.  A long one might extend three pages.

This dynamic is at work in virtually all security cases, even ones not involving administrative detention.  Detainee-victims like Ameer Makhoul and many others who face life sentences for their alleged crimes, know that if they don’t bargain away their freedom by accepting “reduced” sentences, they will spend their entire lives behind bars.  They know there is virtually no chance the court will find in their favor.  Another victim like Dirar Abu Sisi has refused a plea deal, but the State has kept him bottled up in prison for several years without trial.  That is the price a prisoner pays for maintaining his pride and his innocence by not “taking the deal.”

In this sense, the “shadow of the Court” provided a threat that persuaded the State to plea down charges, but it was often a weak and toothless one.  Even in cases where detainees had charges against them dropped it didn’t result in their immediately being freed.

The law journal article is fascinating because it offers an intimate portrait of the personal discomfort felt by Israeli justices in the face of these security cases.  The moral queasiness they experience is embarrassing because it reveals their willingness to suspend their usual judicial demeanor in deference to the security powers of the State.  Here are some of the personal statements Krebs records:

This is not ideal. [Administrative detentions] represent a certain devaluation of our system of values, but there is no other choice.

–Justice E, Israeli Supreme Court

I feel responsibility . . . . There is a war going on . . . the phrase that a democracy fights with one hand tied behind its back is a nice metaphor . . . is a nice phrase to frame on the wall, but it is not suited for real everyday life.

–Justice B, Israeli Supreme Court

You have a feeling of discomfort. I never enjoyed sitting in administrative detention cases. No one enjoys it. Judges don’t like these cases, because we are trained to criminal proceedings, with witnesses, cross-examination . . . It is not pleasant. You want to run away from it as fast as you can, but you know that it is necessary for the sake of your people and country.

–Justice B, Israeli Supreme Court

The judges cannot differ with the ISA story. How can I? I don’t have the defense lawyer jumping to say “it never happened,” “this is not true.”  My ethos, as a judge, is that I have two parties. Of course, I can think by myself, but I need tools, which are missing . . . to the most I have very limited tools

–Justice D, Supreme Court

The state attorneys should also come to the hearing nervous and tense—but they are always very relaxed. They know that no matter what they say or do, they will always win…

There is no judicial discretion here, since the Justices do not know the facts. They don’t have the tools to decide what the level of dangerousness is . . . in one of the cases in which I served as defense lawyer, it took the ISA two years to tell him [the detainee S.K.] what the allegations against him were. Then, when I asked my client about it, it turned out that it was a murder case that happened near his house, in which he had no involvement with whatsoever. When I brought this to Court and asked the ISA representatives about it––I could tell that the Justices knew nothing about it. I could see their surprise. It then took two more detention orders until he was finally released.

–Defense lawyer C

“In some cases even I felt that it was too easy,”

–State Attorney A

With all the good will on the part of everybody, there is no way to conduct a fair ex parte hearing. The human nature and the dynamic of the process prevent fair hearing of the case.

–State Attorney B

The negotiation with the ISA [Israeli state attorney] is bad, because it is blind on the detainee’s part. If the ISA agrees, in the negotiation with the detainee’s lawyer, to issue only one more detention order, or even to release him at the end of the current detention order, it means that the case is weak, and therefore the detainee should have been released immediately.

–Defense attorney D

The more reasoned judicial decisions are no more than a bunch of clichés, since they are not implemented . . . the Justices talk highly about being the “detainee’s mouth,” but they can’t. How can they be his mouth, when they know nothing at all about his side of the story?

–Defense lawyer B

In her conclusion, Krebs draws the following lessons:

The Court systematically avoids issuing release orders, and demonstrates minimal intervention with regard to the assessment of the secret evidence.  As both the case law analysis and the interviews demonstrate, the Court refrains from openly and blatantly opposing the ISA assessment of the secret evidence…

…The research findings [reveal]…the vulnerability of democracies under stress to intolerant and illiberal mechanisms.  The research reveals the weaknesses of judicial protections against prolonged and arbitrary detentions, and highlights the unique challenges posed by secret evidence to fair judicial proceedings. Unfortunately, detention proceedings become an “assembly line” in which “enemies”, “terrorists” or just “others” are constantly losing one of their most basic and valued human assets: their freedom.

Krebs’ analysis proves the justice of the wide-scale Palestinian protest against the administrative detention regime.  You’ll recall that in spite of defense appeals to the Supreme Court to spare the lives of their hunger striking clients, the justices refused to intervene.  They simply refused to provide adequate oversight or judicial review of the actions of the secret police in so-called terror/national security cases.

She notes that use of this tactic has declined over the years.  Perhaps the protests will bring about an even greater drop in such charges.  If so, it can’t happen too soon.  This is not just a blemish, it’s a tumor on the Israeli judicial system.  It brings the justices into a process of collusion with the security services, rather than a relationship of healthy skeptical review as should happen in a normal democracy.  It cheapens the rule of law and undermines it severely.

Though I am neither a lawyer nor human rights specialist, I’ve often written here about violations of fairness and due process in the Israeli judicial process concerning national security cases.  Supporters of this reprehensible system have argued here that I’ve exaggerated and asked for irrefutable proof for my claims.  As far as I’m concerned, Krebs has offered this incontrovertible evidence in her quantitative analysis of the shortcomings of the Israeli legal system.

May 26, 2012 Posted by | Civil Liberties, Subjugation - Torture, Timeless or most popular | , , , , , | Comments Off on Israeli Supreme Court Rubber Stamps Shin Bet Impunity

Congress still okay with indefinite detention and torture of Americans

RT | 18 May, 2012

Even after a federal court deemed the NDAA unconstitutional, the US House of Representatives refused to exclude indefinite detention provisions from the infamous defense spending bill during a vote on Friday.

An attempt to strike down any provisions allowing for the US military to indefinitely detain American citizens without charge from next year’s National Defense Authorization Act was shot down Friday morning in the House of Representatives.

Following discussions on an amendment to the 2013 NDAA that was proposed by Rep. Adam Smith (D-Washington) and Rep. Justin Amash (R-Michigan), House lawmakers opted against passing the law by a vote of 182-238. Had the Smish-Amash amendment passed, military detention for terror suspects captured in the US would have been excluded in the annual defense spending bill. Provisions that allow for that power, Sections 1021 and 1022, were inserted into the NDAA for Fiscal Year 2012. President Barack Obama signed that legislation on New Year’s Eve, essentially authorizing the US Armed Forces to detain Americans indefinitely at military facilities over only allegation of ties with terrorists and subject them to enhanced interrogation tactics on par with torture.

On Thursday night, Rep. Amash took to his Facebook page to address the amendment with his followers. “No matter how much I am slandered or my positions are demagogued, I will NEVER stop fighting to defend your liberty and the Constitution,” wrote the congressman.

Back on Capitol Hill, Rep. Amash circulated a document to his fellow lawmakers on Thursday outlining his proposed amendment. In urging his colleagues to vote yes on the Smith-Amash amendment, the representative from Michigan explained to Congress that the proposal would offer protection to non-citizens of the United States and is the only amendment up for discussion that would guarantee Americans a charge and trial.

Elsewhere in the paper, Rep. Amash harped on a decision out of a federal court earlier this week that ruled that the NDAA violated the US Constitution.

“Our constituents demand that we protect their right to a charge and a trial — especially after the NDAA was ruled unconstitutional this week,” wrote Rep. Amash.

That decision came Wednesday when United States District Judge Katherine Forrest shunned the NDAA’s indefinite detention provision, saying it had a “chilling impact on First Amendment rights.”

“An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” wrote Judge Forrest, who then cited complaints for American journalists who were concerned that they’d be imprisoned without charge solely for speaking with alleged terrorists.

Attorney Carl Mayer represented the plaintiffs in this case and spoke with RT after Judge Forrest’s decision. Mr. Mayer revealed that while the Obama administration can — and most likely will — file an appeal, “we are suggesting that it may not be in their best interest because there are so many people from all sides of the political spectrum opposed to this law.”

Although that opposition has indeed been widespread since even before this year’s NDAA was signed by President Obama on December 31, it was absent on Capitol Hill this Friday when the Smith-Amash amendment was shot down.

Moments before the amendment went up for vote, Rep. Amash wrote on Facebook, “We know the NDAA’s detention provision is unconstitutional. The House will vote on one substantive solution.”

“Will we fix it? And if we don’t, how will we explain that to our constituents?”

May 18, 2012 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | , , , , | 2 Comments

One Thing Maine, Virginia and Arizona Have in Common: Opposition to the NDAA

By Allie Bohm | ACLU | April 27, 2012

This week, the House Armed Services Committee has turned its attention back to the National Defense Authorization Act and began working on this year’s bill. You remember last year’s perversion that, for the first time in American history, codified indefinite military detention without charge or trial far from any battlefield? State legislators and activists and concerned citizens on the right and the left — and everyone in between — haven’t forgotten.

On Wednesday, Arizona’s state legislature sent a bill opposing the detention provisions in the NDAA to their governor. And, last week, a similar bill became law in Virginia, about a month after Maine passed a joint resolution to the same effect. Add to that list the cities and counties that have passed resolutions urging Congress to repeal the problematic provisions in the NDAA — Fairfax, Calif.; Santa Cruz, Calif.; El Paso County, Colo.; Fremont County, Colo.; Moffat County, Colo.; Weld County, Colo.; Cherokee County, Kan.; Northampton, Mass.; Alleghany County, N.C.; Macomb, N.Y.; Elk County, Pa.; and New Shoreham, R.I. — and the map starts looking awfully full. This is not a red state issue or a blue state issue or a purple state issue. A few of the resolutions are under-inclusive, but their message is still clear: across social and political lines, no one likes the idea of indefinite detention or mandatory military detention far from any battlefield. (Okay, except maybe Sen. Lindsey Graham (R-S.C.) and a few other misguided members of Congress.)

Will your town, city, county, or state be the next to speak up? You can make that happen. Check out our model legislation and activist toolkit for legislative language, talking points, and tips to help you get started. Our bill sends a message from your local legislative body to Congress that the indefinite military detention provisions of the NDAA should be repealed. The model legislation prohibits state and local employees from aiding the federal armed forces in the investigation, arrest, detention, or trial of any person within the United States under the NDAA. It also sends a message from your legislative body to Congress that the 2001 Authorization for Use of Military Force should expire at the end of the war in Afghanistan so that the government cannot continue to use the AUMF as justification for its claims that war is everywhere and anywhere and that the president can order the American military to imprison without charge or trial people picked up far from any battlefield.

And while you’re at it, head over to our Action Center and urge your member of Congress to fix the NDAA. The time is now. This year’s NDAA provides the perfect opportunity for Congress to fix last year’s debacle. And, we need you — and your state legislators and city council members — to speak up if we’re going to get Congress to finally do the right thing.

April 27, 2012 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | 1 Comment

A Slick Trick on the NDAA and Indefinite Detention; Don’t Be Fooled!

By Chris Anders | ACLU | April 19, 2012

It looks like there is slick little trick brewing in Congress. Supporters of locking people up without charge or trial are getting ready to play yet another trick on the American people.

Late yesterday, Congressman Scott Rigell and 26 other members of Congress introduced a bill, H.R. 4388, which he is trying to sell to the American people as a “fix” for the National Defense Authorization Act. But in fact, it is a useless bill that might actually end up causing harm.

That’s right. The plan in the House of Representatives seems to be to try to fool Americans into thinking that they are fixing the indefinite detention problems with the NDAA and the Authorization for the Use of Military Force, when in fact, they are doing nothing good.

Don’t be fooled!

Here’s how they hope their trick will work. H.R. 4388, which was sneakily mistitled as the “Right to Habeas Corpus Act,” states that no one in the United States will lose their habeas rights under the NDAA. That might sound like something good, but it’s meaningless.

The question with the NDAA was never whether habeas rights are lost. Instead, the question is whether and when any president can order the military to imprison a person without charge or trial. The NDAA did not take away habeas rights from anyone, but it did codify a dangerous indefinite detention without charge or trial scheme. And nothing in the proposed bill by Rigell would change it. The Rigell bill won’t stop any president from ordering the military lockup of civilians without charge or trial.

And there’s more. Not only is it a useless bill, but it could end up causing harm too. It doesn’t accurately and fully list who is entitled to habeas (for example, it doesn’t even mention American citizens traveling outside the country), which could end up causing confusion.

They are hoping you will fall for their trick and waste all your time and energy on something meaningless — and not fight for legislation that actually protects people from indefinite detention without charge or trial.

They are hoping you will ignore the bills that actually are first steps towards fixing the NDAA. Congressman Adam Smith and Sen. Mark Udall introduced H.R. 4192/S. 2175, which codifies a ban on the military imprisoning civilians without charge or trial or trying persons before military commissions within the United States, as well as repeals section 1022 of last year’s NDAA. Also, Congressman Ron Paul has sponsored H.R. 3785, which repeals section 1021 of the NDAA. Both are meaningful first steps towards fixing a problem.

Supporters of last year’s NDAA indefinite detention provisions hope you will fall for their trick. They want you to spend your time pushing for the Rigell bill, instead of working on something meaningful. For more information about our opposition to the bill, you can read the letter that we sent to congressional offices earlier this week. Retweet our tweet to Rigell to tell him to stop playing games with indefinite detention without charge or trial.

April 20, 2012 Posted by | Civil Liberties, Deception | , , , , , , , | 2 Comments