The dead of night (image: photomequickbooth/flickr)

This is the final part of a 3-part FAQ about the National Defense Authorization Act (NDAA) that began with Another Assault in the Dead of Night and continued with Torture Enabling Expanded Detention.

The first installment explained how the NDAA could be used as a tool for political repression, especially in concert with parallel powers expanded by the PATRIOT Act, and upheld by the Supreme Court, that apologists for the NDAA have generally ignored.

The second installment explained how our nation’s failure to pursue accountability for torture enabled the NDAA’s passage, and also portends the recurrence of torture under the domestic military detention regime the NDAA has authorized. It concluded by noting that torture could create artificial legitimacy for military detention by coercing confessions from whomever is subjected to it.

Put simply, allowing torturers to go free created the conditions to politically whitewash abuses whose predictable recurrence the NDAA will enable.  When torture recurs, it will in turn confer false legitimacy on a profoundly un-American system and undermine political will to restore limits on our government’s power, however deviously it may develop in the future.

Q: Have similar laws caused abuses elsewhere? A: Do political repression and genocide count?

Both world history and current events offer crucial insights on the potential results of authorizing detention without trial.

Those results once inspired our nation to wage a World War.  According to the U.S. National Holocaust Memorial Museum:

German authorities under National Socialism established a variety of detention facilities….In time their extensive camp system came to include concentration camps, where persons were incarcerated without observation of the standard norms applying to arrest and custody….

“[U]nofficial” killings….[were] routinely written up as “suicides,” “accidental” deaths, and “justified killings” of prisoners who were “trying to escape,” “assaulting a guard,” “sabotaging production,” or “inciting prisoners to revolt.…”

Incarceration in a concentration camp was rarely linked to a specific crime or actual subversive activity; the SS and police ordered incarceration based on their suspicion that an individual person…would likely commit a crime or engage in a subversive activity in the future. Read the rest of this entry →

Assault in the dead of night (image: photomequickbooth/flickr)

Ten years ago, Congress enacted a draconian law with no transparency, regard for process, or even awareness of the profound erosion of constitutional rights the PATRIOT Act would entail. Congress did it again this holiday season, repeating its abdication of its constitutional role by authorizing, in the National Defense Authorization Act, indefinite military detention of even US citizens.

The NDAA, however, has older precursors then PATRIOT: the bill recalls shades of central Europe in the 1930s, long predating the pervasive surveillance enabled over the past decade. It also stands at the crux of several fundamental questions: it owes its genesis to the Obama Administration’s political cowardice and lawlessness in resigning executive accountability for torture. Finally, the NDAA presages the recurrence of torture, as well as the false legitimacy that it confers on a system designed to coerce confessions.

I’ll explain each of these concerns over a 3-part series formatted as an FAQ.

Q: Does the NDAA Authorize Political Repression? A: It Certainly Could.

Ignore the self-assured claims by the bill’s apologists downplaying what it means. Concerns about the NDAA’s potential (dare I say predictable?) abuse stem from beyond the four corners of the NDAA itself.

The key is the PATRIOT Act’s extension of “material support for terrorism” to include associational and speech crimes, even where the defendants had no intention of supporting violence. In Humanitarian Law Project v. Holder (2010), the Supreme Court denied a First Amendment defense to the terror prosecution of a charity whose offence entailed funding workshops encouraging non-violence in Turkey (in the same Term that the Supreme Court held that corporations do enjoy a First Amendment right to buy elections). Under the Humanitarian Law Project ruling, as I’ve written before:

The PATRIOT Act’s material support provisions allow our government to criminalize speech and repress political dissent, a frontal assault on the First Amendment. And with material support cases grounded in associational guilt, the First Amendment is also eroding from its figurative sides.

The NDAA would expand those assaults by eliminating the need to prosecute. In the hands of a president, attorney general, US attorney, or even, potentially, state or local prosecutors willing to use their powers for political purposes, it offers the legal authority for severe repression. Read the rest of this entry →

Reflections on the 9/11 attacks are important and moving. But most overlook the enduring legacy of the attacks, in the form of the vastly greater damage done to American principles over the past decade. Whether in the context of surveillance, torture, or the congressional cowardice that has enabled them, our leaders have sullied the legacy of an America that once inspired the world.

Earlier this summer, when facing a crucial accountability moment for an agency that continues to abuse the rights of millions of Americans, members of Congress asked no tough questions, avoided controversy, and submitted to a White House proposal to entrench the FBI leadership—at the same time as they fought to the knuckles over issues that Congress created in the first place by spending the country into a fiscal black hole and absurdly cutting taxes in the midst of multiple wars.

Most astounding in all this is Congress’s apparent abandonment of its own institutional interests. Even in the face of documented lies by the FBI’s leadership to congressional committees and repeated proof that Congress, the press, and the public are hearing only tiny slices of the whole truth, Congress has failed to use its many tools to seek transparency and investigate executive abuses.

There was a time that America’s leaders took seriously their oaths to defend the Constitution by conducting aggressive oversight of executive agencies. A generation ago, for instance, the Church and Pike Committees investigated many of the same practices that have recurred in the past decade. The failure of their successors in Congress threatens the future of democracy in America and reflects a disturbing pattern of congressional submission to executive power.

Congress began lining up to defend executive abuses in the face of public criticism soon after the 9/11 attacks. Special registration requirements, the PATRIOT Act’s draconian surveillance powers, unprecedented authorities to arbitrarily—and indefinitely—detain individuals on the mere basis of accusation, and major revisions to the FBI Guidelines all generated little debate in Congress.

And while we might find comfort in the hope that a counter-movement would emerge, that hope is misplaced. Despite running on a platform announcing that the “choice between liberty and security” was “false,” the Obama administration has continued—and even expanded—the Bush administration’s surveillance and secrecy. And by reversing course on accountability for torture, the Obama administration affirmed that criminals with enough political connections would receive judges’ robes rather than prison terms.

Even when ordered by multiple courts to release evidence of detainee abuse, the White House refused. In fall 2009, in the midst of a year-long battle to extend healthcare to 42 million underinsured Americans, Congress took less than a week to change the law at the Obama administration’s request so that evidence of the Bush administration’s abuses would remain hidden from the public. This, after abandoning Obama’s original nominee to lead the Office of Legal Counsel at the Justice Department because she favored applying the law equally to all accused criminals, regardless of their political position.

Leave aside that hiding evidence of detainee abuse places our soldiers at risk abroad by driving the recruitment efforts of violent extremists and effectively inviting our enemies to treat our troops in the same inhumane way. Ignore the 2.3 million Americans rotting behind bars—25 percent of the world’s prisoners, in the nation that claims to lead the free world—while politically connected criminals enjoy power, prestige, and even lifetime judicial office. Forget about the sacrifices of the soldiers who gave their lives in WWII to usher in a lost era of peace, or how human rights precedents that our nation established in Nuremberg have been wrecked by our unwillingness to pursue uncomfortable truths.

Think instead about how the Freedom of Information Act (FOIA) came to be: through controversy stoked by grassroots activists who broke into an FBI office and elite critics who used their findings to spark a two-year congressional investigation documenting heinous abuses by FBI and CIA officials. The FOIA stood for 40 years, but when courts interpreted it to require the revelation of Pentagon crimes, Congress quickly joined President Obama to change the law. “Move along. Nothing to see here…”

Think about why the CIA destroyed videotapes documenting torture. And then remember the debate in the wake of Osama bin Laden’s elimination over whether to revive torture, even though the Defense Department said it was unhelpful and claimed to have ended the practice.

The American people voted in 2008 for change, including restoring constitutional protections against unchecked secret dragnet surveillance and accountability for human rights abuses. The abject failure of our government to reflect that mandate reflects how perverted our republic has grown. For a project that took two and a half centuries to build, the past decade has been catastrophic for democracy in America. When future generations look back on our failures, the attacks of a decade ago will be the least of their concerns.

Ten years ago on September 11, 2001, the United States suffered the worst terrorist attack in the nation’s history. In the panic of the weeks that followed, the American government began changing its counterterrorism policies in ways that undermined constitutionally guaranteed civil liberties, culminating in the passage of the USA PATRIOT Act on October 26, 2001. Within two weeks of that law’s passage, on November 10, 2001, organizers in Massachusetts founded the Bill of Rights Defense Committee to fight against that dangerous law and others that followed.

To mark the tenth anniversary of these pivotal events in American history and of our organization itself, the Bill of Rights Defense Committee is running a series of articles looking back on the last ten years. This post is part of that series.