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The NDAA — we are all Josef K now

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Ramsey Clark
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.”

Peter Voskamp

Peter Voskamp is a freelance writer based in Washington, DC.

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23 Responses

  1. pabelmont on March 2, 2012, 9:59 am

    Elements of the NDAA 1021 might claim to protect anyone arrested under it, but the people who arrest you might not protect you. They are jailers who think you are a terrorist. they might be entitled to kill you — with or without a drone.

    The problem that I se with NDAA 1021 is that it invites people — federal employees such as CIA and FBI and Army and DEA (together “secret police”) — to arrest someone because of an allegation of terrorism or terrorist connection (but an allegation by whom? and with what reliability? who knows? the allegation of a neighbor who you owe money to?). Once arrested by such secret police, there is no court, no mechanism in place, no rules, to require that the secret police attempt to discover whether or not you ARE a USA citizen, and whether or not the allegations of terrorism against you are true or believable or reliable — what used to be required to supply the ordinary police with a “probable cause” to arrest you.

    Consider: the police are not supposed to allow a terror suspect ANY contact. How, then, will the suspect contact his family, employer, lawyer, to establish the FACTS of his citizenship? To “prove” that he is innocent of the charges of terrorism (which probably will not be told to him, anyway). The old USA legal idea that you are “innocent until proved guilty” is out the window if you cannot contact anyone, and if you cannot read the evidence and cross-examine those who testify against you.

    These secret police are not going to be trained to go through all the civil-rights due-process hoops that normal police are trained to do. If they were, then why not just USE ordinary police?

    That anyway was my fear.

  2. marc b. on March 2, 2012, 10:06 am

    you really to have to wonder whether our elected representatives are sociopaths. and i mean that in the clinical, not pejorative, sense. my rep continues to disappoint, voting for every bill leading to the further militarization of society.

  3. on March 2, 2012, 10:08 am

    re: “similar to the Nazis suspending the rule of law in 1933.”

    Could Mr. Voskamp please cite the legislation or other German government measure comparable to NDAA under which “Nazis suspend[ed] the rule of law in 1933”?

    thx

    • LeaNder on March 2, 2012, 11:03 am

      teta, what you are looking for is this: Reichstagsbrandverordnung / Wiki English

      • Talkback on March 3, 2012, 3:42 am

        The Nazi law created the procedure of Schutzhaft (“protective custody”), which allowed the Nazi regime to put all political opponents in concentration camps without charge or trial.

        So it is not only comparable. It is identical and the core of fascism. And I foresee that like the Germans the Americans are going to do nothing against it, until it’s to late.

      • LeaNder on March 3, 2012, 10:18 am

        So it is not only comparable. It is identical and the core of fascism.

        I do have problems with this type of argument. A trend doesn’t mean identity.

        My main objection from the top of my head would be that this law had historical ancestors in the Weimar Republic’s emergency type laws (Notverordungen, I think they were called) that gave the president rights beyond the usual constitutional legal frame, and before the president you had the power of the diverse types of kings or self-declared emperors..

        If you have about 30% people without employment, the circles that would prefer a return to a kingdom or empire anyway obviously started to lobby for such safe-guards against the communist/socialist mob and its demands; and they were successful long before the Nazis.

        Once you start to look closer at the Nazis you realize that not a single one of their ideas was original, everything they propagated has historical roots, even the extinction of the Jews has historical roots on the far right in the late 19th century.

      • Talkback on March 4, 2012, 7:33 am

        It was Hitler’s Notverordnung which transfered this presidential power (which could be opposed and restricted by the goverment) to the chancellor (the head of goverment), which means himself. And by the same law he nullified many of the key liberties of German citizens so he could put any further political opponents into custody without charge or trial and surpress publications not considered in line with him or his “circles”. Of course there’s nothing original about it or the NDAA. And it’s not a trend, it’s the tool.

    • Light on March 2, 2012, 12:24 pm

      The Reichstag gave Hitler the power to make his own laws. He then proceeded to ban all political parties and arrest the opposition.

  4. Pixel on March 2, 2012, 10:34 am

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

    Of course they saw it. If we’re asking ourselves that question, we’re wasting time and missing the point, completely.

    The question we should be asking ourselves – and pursuing while we still can – is why they saw it and passed it anyway???

    • Citizen on March 3, 2012, 5:35 am

      Pixel, look at the Senate’s vote. They had no problem at all signing on to initiation of our new STASI state. Talk about 1oo Americans who are so damn powerful and unaccountable, living in a bubble… I think the only thought that came to any of them was, “We need to protect ourselves from Arab terrorists, so let’s not play around–besides, what’s to worry about as long as you aren’t doing anything wrong?” I think Dick and Jane think the same way. Slippery slope arguments do not register–for them to do so, one actually has to know a bit about history, and have the modest amount of imagination to see the past in the present in terms of human conduct. Politicians play with a deck of cheap history cards with simple iconic designs on them–they pull out out the one they calculate best helps their agenda at any moment.

    • Eva Smagacz on March 7, 2012, 6:02 pm

      Pixel, you wrote:

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

      The question we should be asking ourselves – and pursuing while we still can – is why they saw it and passed it anyway???

      I believe that the real reason behind NDAA is that of 1% preparing for another revolution, similar to French Revolution or Russian Revolution. They look at fate of chinese bourgeoisie under Mao and tremble.

      I believe that chasm between rich and poor is now similar to levels before these revolutions.

      After Soviet Union was established, the working class was treated with unheard of kindness, culminating with never-attained-before-or-after flattening of income differentials and raising an unprecedented numbers of working class people to middle class.

      The pushback started with Reagan and Thatcher, destruction of unions and accelerated with globalization. Middle Class is shrinking.

      Social unrest is starting.

      • Mooser on March 7, 2012, 10:24 pm

        “The pushback started with Reagan and Thatcher, destruction of unions and accelerated with globalization. Middle Class is shrinking.”

        Once the Civil Rights bills were signed, I knew it was over. America’s Middle Class would stab themselves in the back and kick themselves in the ass, rather than share their benefits with blacks and other minorities.
        And, I’m thinking, they did a real good job of it.

  5. LeaNder on March 2, 2012, 10:40 am

    Yes, perfect reminder of frightening aspects in the US post 911 universe.

    I’d appreciate a tiny bit of information about Peter Voskamp at the end of the article. I seem to remember there was always slight confusion to fit him into the the design, yes, e.g. here:

    Voskamp is the editor of the Block Island Times.
    About Peter Voskamp
    Philip Weiss is Founder and Co-Editor of Mondoweiss.net.
    View all posts by Peter Voskamp →

  6. Oscar on March 2, 2012, 10:45 am

    The NDAA was quietly signed into law on New Years Eve 2011 by robosignature, and marked the stealth destruction of the rule of law in America and the negation of the Constitution. It means at any time, your government might not like a google search you’ve done and can send jack-booted thugs to your home, put a black bag over your head, and disappear you into a FEMA camp indefinitely.

    If you think this is all just a conspiracy theory, then go back to your Dancing with the Stars, NFL football, World Wrestling Federation. You’re part of the problem but you’ll never be part of the solution.

    Great article, Peter. Thanks for posting it, Phil and Adam.

  7. PLV on March 2, 2012, 12:28 pm

    Teta,
    I believe Naomi was referring to the Reichstag Fire Decree from Feb. 1933, the formal name of which was The Decree of the Reichspresident for the Protection of People and State, which gave the Nazis power to imprison anyone deemed an enemy of the state. The Enabling Act followed in March 1933, which granted further dictatorial powers. Both serve as examples of how laws can be used to suspend law…

    • Citizen on March 3, 2012, 5:51 am

      Yeah, PLV, the parallels between 9/11 & the Reichstag fire, and the resulting respective enabling acts really leaps out–one would think every college campus, and especially law school, would be buzzing with concern.

  8. Chaos4700 on March 2, 2012, 1:09 pm

    Screw the birth certificate. Remind me how we’re supposed to believe that our President has a diploma for Constitutional law.

  9. American on March 2, 2012, 2:17 pm

    “the extra-constitutional powers would go away once the “war” ends”

    Well that’s b***, because there will be some people who aren’t ever going to let it end.
    Let’s have a revolution. Better do it quick, I read that Police Departments are now getting Drones. How crazy is that? Using drones on civilians?

  10. Keith on March 2, 2012, 6:21 pm

    The increased militarization of our society is a direct consequence of neo-liberal globalization. Third World “structural adjustment” is now being imposed upon the First World as the Corporate/Financial elites consolidate their global control. The impoverishment of the majority will inevitably lead to civil unrest, which has been anticipated and planned for. Massive propaganda will no longer suffice to quell disillusionment. This will require increasing reliance on naked force. Liberty and empire are mutually exclusive. We live in dangerous times.

  11. DICKERSON3870 on March 2, 2012, 9:40 pm

    RE: “The NDAA — we are all Josef K now” ~ Voskamp

    JOSEF K’s PREDICAMENT IN KAFKA’s “THE TRIAL”:

    …after months of trial postponement, Joseph K goes to court painter Titorelli to ask for advice. He is told to hope for little. He might get definite acquittal, ostensible acquittal, or indefinite postponement. No one is ever really acquitted, but sometimes cases can be extended indefinitely.

    Titorelli: “You see, in definite acquittal, all the documents are annulled. But with ostensible acquittal, your whole dossier continues to circulate. Up to the higher courts, down to the lower ones, up again, down. These oscillations and peregrinations, you just can’t figure ‘em.”
    Joseph K: “No use in trying either, I suppose.”
    Titorelli: “Not a hope. Why, I’ve known cases of an acquitted man coming home from the court and finding the cops waiting there to arrest him all over again. But then, of course, theoretically it’s always possible to get another ostensible acquittal.”
    Joseph K: “The second acquittal wouldn’t be final either.”
    Titorelli: “It’s automatically followed by the third arrest. The third acquittal, by the fourth arrest. The fourth…”

    PARTIAL SOURCE – http://www.imdb.com/title/tt0057427/quotes?qt=qt0135410

    • DICKERSON3870 on March 2, 2012, 9:51 pm

      P.S. ALSO SEE: Israel Faces New Hunger Striker After Reneging on Prisoner Swap , by Jason Ditz, Antiwar.com, 2/23/12

      (excerpt) Israeli officials were likely hoping that their policy of detention without charges would stop being a topic of discussion after Khader Adnan ended his hunger strike earlier this week. A new striker has emerged, however, in the form of 29-year-old Hana al-Shalabi.
      Ms. Shalabi’s capture is nothing new. She was held in “administrative detention” for over two years without charges before being released in October as part of the Shalit prisoner swap. That lasted a couple of months, but Israel announced a new administrative detention for Shalabi late last week, still with no charge. . .

      SOURCE – http://news.antiwar.com/2012/02/23/israel-faces-new-hunger-striker-after-reneging-on-prisoner-swap/

  12. ToivoS on March 2, 2012, 10:30 pm

    Ramsey Clark is one of my favorite public servants. After LBJ left office he said that Ramsey was the worst appointment he ever made. What a positive recommendation. That is one man who has stood up for the American people.

    After all these years, he continues to stand up for the interests of us good old fashioned American people.

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