National Defense Authorization Act is final nail in the coffin of US civil liberties

Empowering Weak & Oppressed

Zainab Cheema

Safar 07, 1433 2012-01-01

News & Analysis

by Zainab Cheema (News & Analysis, Crescent International Vol. 40, No. 11, Safar, 1433)

In the post-9/11 theatrics of George W. Bush, one of the more memorable is his explanation for why the dastardly terrorists chose to attack the glorious symbols of US power: “They hate us for our freedoms,” or in another version, “They hate us for our civilization.”

In the post-9/11 theatrics of George W. Bush, one of the more memorable is his explanation for why the dastardly terrorists chose to attack the glorious symbols of US power: “They hate us for our freedoms,” or in another version, “They hate us for our civilization.” Laying aside the oilman’s chest-thumping, there is an intuitive logic in connecting constitutional rights with US civilization. But with the National Defense Authorization Act (NDAA) passed through the US Congress on 12-14-2011, the US’s own long war against its civil liberties comes to a grim close. The republic is dead, long live the king!

Infamous Bush-era legislation like the USA Patriot Act chipped away at the edifice of free speech, habeas corpus, and right to a fair trial, then the NDAA is the ghostly aftermath of an epic demolition job. Essentially, the NDAA breaks down the critical dividing line between the US military and domestic police, converting domestic space into a war zone where US citizens are subject to the elegant civilities of rendition, torture, and indefinite detention. As Senator Lindsay Graham self-importantly declared: “The homeland is part of the battlefield and people can be held without trial whether an American citizen or not.” Instead of getting rid of Guantanamo as he promised, Obama has signed into legal reality the Guantanamoization of the United States itself.

Under the NDAA, terrorist suspects in the US — including citizens — are subject to military rule rather than civil law. That is, anyone suspected of terrorist activity on US soil can be thrown in a military brig and detained indefinitely. The suspect will have no right to a civil trial — the Kafkaesque paraphernalia of a military trial, including “secret evidence” not disclosed to the defendant, is already a matter of legend. As demonstrated by the show trials under the Patriot Act, the legal definition of a terrorist subject is like a sieve so expansive that practically anyone can fall through the meshes. Giving the military imperial jurisdiction over “terrorists” and “potential terrorists” will mean that the panoply of torture arts refined at Guantanamo and Abu Ghraib can now be legally applied to US citizens. Orwell’s 1984 has become a how-to manual, rather than an omniscient warning about impending totalitarianism.

Also, rendition is no longer the stuff of Jake Gyllenhaal movies that can enjoyably spook US audiences for the space of 90 minutes. A section of the NDAA authorizes the US military to transport members and supporters of al-Qaeda, the Taliban, or “associated groups” to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity. That is, a US citizen can be carted off to a foreign base or camp for an elite spa package of torture treatment anytime the military so deems. US citizens have just woken up to the joys of fresh-brewed coffee and martial law.

The NDAA was not only spearheaded by the heads of powerful Senate committees, but it passed with a wide margin of congressional support. It passed the House with a vote of 283–136 (that is, 283 in favor and 136 against), and even more impressively, the Senate with a margin of 93–7. President Obama initially threatened to veto the bill, due to his worry of vast powers of military oversight impinging on presidential power. He eventually caved in (his typical political posture) once an adequate power-sharing agreement was reached between the military and presidency. But make no mistake: the military is now the ultimate executor of law. According to a New York Times article, even the powerful FBI is on tenterhooks about being sidelined from its own jurisdiction: “[T]he bureau’s director, Rob-ert S. Mueller III, testified on Wednesday [12-14-2011] that he remained concerned that it would introduce “uncertainty” about what should happen at the time of an arrest.”

If Obama was hoping to drum up liberal star-struckness with his persona, as in the heady days of his election campaign, his support of NDAA entirely vaporized it. “By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law,” Kenneth Roth of Human Rights Watch said in a statement. Even Forbes Magazine, usually known for worshipping the captains of industry (the kind of people who have a few dozen politicians on instant dial) published a rather ominous headline on December 5: “The National Defense Authorization Act is the Greatest Threat to Civil Liberties Americans Face.” The fact that Forbes and the ACLU find themselves in the same position on this issue is the most eloquent testimony of all to the grotesqueness of the NDAA.

On one level, what the NDAA has dispensed with is American exceptionalism. Some commentators have noted that the bill means the US is no longer the secure beacon in the fog of war that Pax Americana has dispersed worldwide since the end of WWII. The US is as much of a battleground now, equivalent to shuddering in a hut in an Afghan village or an Iraqi tenement wondering when the next night raid will shatter through the door. “The bill is an historic threat to American citizens and others because it expands and makes permanent the authority of the president to order the military to imprison without charge or trial American citizens,” noted ACLU senior legislative counsel Christopher Anders. And while Bush’s rhetoric endlessly glorified the chimerical security of citizens as the justification par excellence for dismantling their rights, the NDAA at least dispenses with that formality. The members of Congress that passed the bill spoke about the need to “support the troops” — even as 250,000 veterans roam the US in desperation looking for work or even a place to stay.

But confess, how unexpected are these turn of events? It has all become rather blasé — the gasps of horror emitted by critics are nowhere near as strong as when the Patriot Act was first unrolled. In fact, the NDAA is the logical outcome of the militarization of domestic law-enforcement first broached with the creation of the Homeland Security Department under the Patriot Act. There is a certain primal force to how the painstaking legal rope-net of rights woven by the US over roughly 200 years, is coming undone strand by strand.

For instance, the NDAA has nullified the 1878 Posse Comitatus Act, which effectively barred the army from interfering in domestic law enforcement. “Section 1030 [of the NDAA] essentially repeals the Posse Comitatus Act of 1878 by authorizing the military to perform law enforcement activities on American soil,” noted dissenting Senator Mark Udall in a speech shortly before the bill passed, “[t]hat alone should alarm my colleagues on both sides of the aisle.” In his article, “The Myth of Posse Comitatus,” Major Craig Trebilcock argues that the “Posse Comitatus Act was passed in the 19th century, when the distinction between criminal law enforcement and defense of the national borders was clearer.” Despite his attempts to portray it as an antediluvian souvenir that should be dispensed with in an age of high-tech information, it is an indisputable fact that such legislation emanated from the political influence of the US Constitution, which enshrined the principle of separation of powers.

To dust off ancient history, separation of powers was chosen by Jefferson, Paine, Madison and the rest of the US’ intellectual fathers as the blueprint of US democracy in order to prevent power from accumulating in the hands of a few. The expensive and wasteful system of distributing powers between an executive, judiciary, and legislature; federal and state levels of government; domestic police and a military was for the sake of guaranteeing the value of liberty. But the national security state that has been inexorably taking shape since the 1950s onward has coalesced all power in its maw, where military lobbies and private contractor interest groups sprinkle the avaricious congressmen with funds and perks in order to rope the legislature to its will. The imperial presidency is a mere spokes-person for Wall Street and Pentagon Inc. (dubbed “the military industrial complex by Eisenhower in the 1950s).

Pentagon Inc. has been the most powerful lobby in the US for quite some time, evident in its ability to carve out one-half of the federal budget pie for itself year after year. At a time when the US economy is atrophying and departments like education and health are being downsized, the NDAA has only increased the Pentagon’s military budget. While Pentagon Inc. allotted itself $515.4 billion dollars for 2009 (dubbed “record levels” by the New York Times), the NDAA now, by legally instituting a state of total and endless war, has allowed the military to assume the imperial mandate of being the primary guarantor of law itself. This is self-deification on the scale of the tin-pot dictators of old, Augustus Caesar and Napoleon Bonaparte.

The NDAA has been percolating in the US Congress for a good part of the year, but its speedy passage in December is reflective of the shock waves set off by the Occupy Movements across the United States. Police abuse of Occupy protestors and college students underscores Wall Street’s and Pentagon Inc.’s fear of the public as the economy crumbles. But police brutality in dispersing protest isn’t enough — now that martial law is in effect, any protest of the military industrial complex’s policies will merit a military response. And so, in the endless pursuit of total security, the US public faces the insecurity of tyranny as barefaced as in any Third World dictatorship.

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