The NDAA — we are all Josef K now

Ramsey Clark

The terms “Kafka-esque” and “Orwellian” can be tossed about too casually, but if critics are correct, the 2012 National Defense Authorization Act renders any American a potential Josef K. in his or her own nightmarish version of “The Trial.” 

Section 1021 of the Act, per prevailing critical interpretation, authorizes indefinite military detention of American citizens — a dubious American first. No Habeas Corpus. No right to challenge evidence. 

These “unconstitutional kidnapping powers,” as Blake Filippi of a Rhode Island Liberty Coalition called them during a “transpartisan” forum held with journalists last week, have spurred a groundswell of local and state effort to roll back this most alarming of power grabs.

At least six municipalities nationwide have adopted resolutions against the Act, and legislation has been introduced in state assemblies across the country to nullify the Act. Virginia’s House of Delegates passed such a measure 96-4 in recent weeks.

The discussion, sponsored by the Bill of Rights Defense Committee, Demand Progress and Tenth Amendment Center, included speakers and officials from across the political spectrum.

“This is the worst thing I’ve seen in my lifetime,” said social critic and author Naomi Wolf. She described the arrival of NDAA as a kind of liberty-evaporating tipping point, similar to the Nazis suspending the rule of law in 1933.

“That’s the point of no return; nobody’s safe,” Wolf said. Just a few targeted arrests were “all it took to shut down civil society.” Wolf was baffled over why senators like California’s Dianne Feinstein supported the act, when it’s certain Feinstein’s constituents would be appalled. “Who benefits?” she asked.

Wolf was arrested in New York last fall at an Occupy Wall Street protest. She now says that with NDAA on the books she’s not sure it’s safe to stand up for 1st Amendment. “All bets are off,” Wolf said. “There’s no accountability.”

Bruce Fein, a conservative writer and former Justice Department official in the Reagan Administration, was even more strident in his denunciations.

He expressed outrage over the lack of outrage following a recent appearance by Pentagon Counsel Jeh Johnson at Yale Law School. Johnson defended the administration’s assassination of U.S.-born Anwar al-Awlaki, as well as its overall right to take out any American citizen it says is in league with al-Qaeda. 

“Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives,” Johnson reportedly said.

Calling the situation “really quite wretched,” Fein said Obama had taken on “far more dictatorial powers than Richard Nixon.” By stripping citizens of Habeas Corpus rights as well as the ability challenge evidence, NDAA is “the ultimate corruption of due process,” said Fein. He pointed out that the country fought a war against England’s King George III precisely to free itself from such treachery. “Not quite the Nürnberg laws,” said Fein, referring to the Nazi anti-Semitic laws, “but moving there on the installment plan.”

Absent a Washington effort to overturn the Act, state and local officials have stepped into the breach.

North Carolina State Senator Ellie Kinnaird (D) said, “This country is really threatened — [the government] now has the power to undo everything we have.”

Washington State Rep. Matt Shea (R), a military veteran and practicing constitutional lawyer, has co-sponsored a bill — HD 2759, the “Preservation of Liberty Act” — declaring the NDAA unconstitutional and forbidding the state’s National Guard to arrest American citizens.

“How come local and state representatives can see it?” Shea asked, but the national Congressional leaders can’t.

The House of Representatives passed the NDAA 283-136, while the Senate approved it by a vote of 93-7.

NDAA defenders say the Act merely affirms the Authorization for Use of Military Force (AUMF) passed in the wake of 9-11, which already granted the president the right to order indefinite detention without trial. Also, say defenders, the extra-constitutional powers would go away once the “war” ends

However, Obama acknowledged reservations about Section 1021 when he quietly signed the NDAA into law on New Years Eve 2011. “The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” Obama wrote.

It is worth quoting another part of the statement at length.

“The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not ‘limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.’ Second, under section 1021(e), the bill may not be construed to affect any ‘existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.’ My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”

Still, a pledge to not abuse power does not necessarily bring comfort, since future presidents would be able interpret the law as they wish.

If indefinite detention of U.S. citizens was not intended, then “why not write ‘prohibited’,” asked Peggy Littleton, a Republican County Commissioner for El Paso, Colo.

El Paso County passed a resolution against the NDAA on December 15, 2011, two weeks before Obama signed it into law. El Paso is home to myriad Air Force installations, and Littleton called the outrage at the power to indefinitely detain Americans “non-partisan.” Northhampton, Mass., City Councilor Bill Dwight (D) said, “we are witnessing the death by a thousand cuts to the Bill of Rights.” He said the public is being manipulated by fear, and that every politician’s first oath is to protect the U.S. Constitution, “which is clearly in jeopardy.” His town passed a non-binding resolution against the bill. It was the seventh city nationwide, and the first in Massachusetts, to do so.

In 2008 the U.S. Supreme Court granted Habeas Corpus to Guantanamo Bay inmates via the Boumediene v. Bush case. How does that decision square with NDAA?

Fein said the Boumediene decision was a kind of false dawn, easily circumvented by authorities by either moving an inmate, or by redacting charges to the point where the inmate still wouldn’t know what he was being held for

Fein called it “worse then Caligula,” whose edicts appeared in tiny letters so high upon a wall that citizens could never be certain where they stood vis-à-vis the law.

I spoke to the late Henry King Jr., a former Nuremberg prosecutor, in the immediate aftermath of the Boumediene v. Bush decision. He hailed it as “an affirmation of the principles” laid down at Nuremberg regarding the rule of law.

“We gave the Nuremberg defendants every right in the world,” said King. “We didn’t torture them” and provided a comparatively quick trial.

“We’re the beacon of light for human rights,” King insisted. “You’ve got to have a rule of law.”

King went on to say that his former boss in Nuremberg, lead prosecutor Robert Jackson, would be turning in his grave in response to the various “security” measures adopted in post-9/11 America.

“We ought to wipe out Guantanamo,” King said.

A few weeks ago I found myself standing next to former Attorney General Ramsey Clark in the café car of a train. 

Clark is another fierce champion of the rule of law, to the extent that he has risked the ruination of his reputation in order to defend it. He assisted with Saddam Hussein’s legal defense, and volunteered to provide legal help to both Slobodan Milosevic and Radovan Karadzic.

I asked Clark what he thought about the NDAA.

The 84-year-old gazed out upon the passing coastline and ruminated. We then entered Baltimore and he pointed to a church. “That’s where they held Philip Berrigan’s funeral service,” Clark said quietly.

Clark had defended Phil Berrigan, a former Catholic priest, who along with his brother the Jesuit priest Dan Berrigan, put his faith to the test through the decades, going to jail for acts of civil disobedience against the Vietnam War.

“The NDAA?” Clark repeated. “An outrage.”