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 →

This Veterans Day, it’s worth noting how, while paying lip service to honoring our veterans, our leaders systematically abuse their legacy, expose current servicemembers to potential human rights violations, and degrade the nation they have risked their lives to defend.

The day before the PATRIOT Act’s 10 year anniversary last month, I was visiting the San Francisco Bay Area for a series of speaking engagements. The afternoon of Tuesday, October 25, I visited a journalism class at the University of California Berkeley to discuss the First Amendment. It was during the class that the Oakland Police Department began gassing peaceful protesters just a few miles down the road at Occupy Oakland. After class was over, I headed to downtown Oakland, encountered some police violence myself, and witnessed the aftermath of Iraq veteran Scott Olsen suffering a fractured skull at the hands of the Oakland police department.

It’s one thing, to use the words of President Eisenhower, for our country’s military industrial complex to co-opt taxpayer money, create entire industries dedicated to death and destruction, and skew our foreign policy to encourage war and militarism. That same industrial complex now sells to local police departments technologies initially developed for the military to use in war, from rural sheriffs’ offices using aerial drones, to monitoring neighborhoods with license plate scanners, to local police deploying the mobile sonic cannon to quell dissent in Oakland two weeks ago.

The domestic intelligence industrial complex is apparent in other, even more disturbing, ways. Under the guise of a program to deport undocumented immigrants, government agencies are constructing the Next Generation Initiative, a national identification system based on biometric data like fingerprints, facial and voice recognition, iris scans, and potentially even DNA—turning our bodies themselves as identification cards. Working with America’s local law enforcement agencies, the FBI has already rolled out this pervasive biometric data collection.

These are not the rights for which our veterans risked their lives.

For 60 years, we have prided ourselves on being the nation that ended torture and human experimentation, at the cost of a World War and tens of millions of lives. In only 10 short years, we have abandoned those principles. As I’ve written before:

Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama’s aim to “look forward, not backward,” may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.

Our nation’s leaders, from both major political parties, have left behind not only the prohibition on torture our veterans once fought to establish, but alsoany pretense of accountability for human rights abuses—effectively ensuring that torture and forced confessions will rear their ugly heads in the future. Forced confessions will abuse not only the rights of those false accused and wrongfully convicted, but also our justice system, which will lose whatever shred of legitimacy it still claims after having already imprisoned millions for trivial offenses while letting human rights abusers (like Judge Jay Bybee) run amok and continue to claim power.

We have lost World War II—to ourselves—in a time of relative peace, two generations after achieving victory at incalculable cost.

This is not the vision for which our veterans fought.

We give thanks today for our veterans and their sacrifices, and we remember and honor the principles they defended. They paid in blood to protect liberty and human rights. It is a shame on our nation and the world that we have abandoned those principles with such glaring indifference.