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Hedges v. Obama: The Supreme Court digs its head deeper into the sand

11:26 am in Uncategorized by Shahid Buttar

Outside the US Supreme Court

 The Supreme Court declined to consider  a constitutional claim challenging a law that enables indefinite detention of US citizens.

On Monday, the Supreme Court declined to consider Hedges v. Obama, a constitutional claim challenging a law that could enable the indefinite military detention of US citizens—within the US—without trial, charge, or evidence of crime. The decision is remarkable, both for its implications for fundamental rights, and its reflection on judicial independence.

A dangerous and controversial law

When the National Defense Authorization Act of 2012 was first signed into law on the last day of 2011, few observers noticed. Some version of the bill is passed every year, but the 2012 version inserted dangerous provisions that could expand the military’s domestic detention powers.

Several notable observers did take notice, however. Despite her complicity in mass NSA surveillance, Senate Intelligence Committee Chair Dianne Feinstein (D-CA) has spoken out against torture, as well as detention. When Congress debated the 2013 NDAA in 2012, she unsuccessfully tried to limit the detention provisions through amendments.

Military families also spoke out, supporting a county resolution in El Paso County, Colorado (the site of several military installations, including the Air Force Academy) that passed even before the bill became law. They recognized that:

[O]ne of our most fundamental rights as American citizens is to be free from unreasonable detention without due process of law, a right afforded to us by our Founding Fathers and guaranteed to us by over two centuries of sacrifice by our men and women in the Armed Forces whom we daily recognize and honor;

US District Judge Katherine Forrest also shared similar concerns. In September 2012, she issued a permanent injunction aimed to prevent the detention provisions from going into effect. She wrote that:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent.…

Although § 1021(b)(2) does not, strictly speaking, suspend the writ of habeas corpus, it eliminates all other constitutionally-required due process (indeed, leaving only the writ)

The Second Circuit’s decision to reverse her decision, and Monday’s Supreme Court decision to allow that reversal to stand, have dangerous and disturbing implications. The Snowden revelations may help explain why.

A whole worse than the sum of its parts

The power to detain—or, for that matter, kill—without charge or trial effectively inverts the presumption of innocence. Due Process requires the state to prove allegations before meting out punishments. Yet the indefinite detention powers of the NDAA could empower our military to imprison Americans on the basis of mere accusation, effectively treating people accused as if guilty until proven innocent.

Our nation has already legalized torture with impunity. Beyond undermining human rights, fueling terrorist recruitment and generating bad intelligence, torture also enables future officials to paint anyone potentially detained as guilty—even without proof, on the basis of “confessions” coerced by interrogators.

In other words, the NDAA could enable government detention, possibly of targets identified through the surveillance regime exposed by Snowden. While President Obama has renounced so-called “enhanced interrogation,” those detainees remain potentially vulnerable to torture techniques that could effectively contrive their guilt.

The only things as disturbing as the power to torture people into false confessions are the powers (1) to detain them without cause, (2) monitor them en masse in secret (potentially to identify potential dissidents), and (3) arbitrarily profile individuals and communities according to their race, religion, or point of view.

All of these powers are currently well-established in American law. Together, they could form the foundations for severe oppression, or even mass atrocity. Once triggered, it will take very little to bend those dangerous powers to horrific ends—and a great deal to stop them.

This is one reason why detention without trial—like mass surveillance—has always been viewed as a defining cornerstone of authoritarianism. The relevant question is not whether these powers can be abused: it’s whether anyone self-censors because they know they’re being watched, which has already been well documented.

The judiciary vs. itself

Also disappointing is the judiciary’s self-marginalizing erosion of its own independence. Our courts have abandoned not only the Constitution, but also themselves.

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Will Obama’s second term finally fulfill his 2008 promises? (Part I)

5:37 pm in Uncategorized by Shahid Buttar

This article was originally published on the People’s Blog for the Constitution and is the first in a forthcoming series articulating specific civil liberties recommendations for the second Obama administration.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Unlike Obama, Bush & Cheney never asserted the authority to kill US citizens based on their speech.

Unlike Obama, Bush & Cheney never signed into a law a statute granting the military the power to detain any American without evidence or proof of crime.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide  that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

The Obama administration’s prosecution of whistleblowers who sacrifice their jobs to defend the public interest has reached unprecedented levels, as have deportations of undocumented workers, their families, and occasionally, even US citizens. Rather than repudiate the Bush & Cheney paradigm, Obama has unfortunately perpetuated it.

A former President’s warning

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

Eisenhower proved prescient. True to his prediction, the contemporary national security racket offends all Americans, regardless of ideology.

Casualties of the national security state: transparency, accountability, and legitimacy

First, it has erected such pervasive secrecy that it threatens the basis for democratic accountability, subverting the consent of the governed on which democratic  legitimacy depends. For years, the NSA operated its dragnet warrantless wiretapping scheme in total secrecy, not only unauthorized by statute, but in direct violation of the Foreign Intelligence Surveillance Act (FISA) enacted by Congress in the 1970s to stop domestic spying.

Every federal court ever to review the program on the merits has struck it down as unconstitutional, yet it persists unabated. Congress bent over backward to rewrite the FISA law in 2008, and appellate courts have thrown out numerous lawsuits challenging it based on the perverse reasoning that, because the NSA’s program is secret, no plaintiffs can prove that they, in particular, have been monitored.

Officials have admitted to violating even the permissive new law. Members of Congress have asked tough questions and received only silence in response. Yet, reflecting a disturbing pattern of bipartisan abdication repeated over the past decade, the House recently voted to reauthorize the 2008 FISA amendments for another five years, even beyond the next administration.

Secret programs violating contrived statutes, especially with the blessing of (supposedly) independent courts, make a mockery of our claim to live in “a land of the free.”

Further installments in this series will examine the ideologically diverse social movements abused by misguided and constitutionally offensive domestic spying activities, as well as the contribution of those programs to the federal budget crisis. The series will conclude by suggesting not one, but two alternative national security agendas for President Obama’s second term.

Photo by leighblackall under Creative Commons license.