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 →