Feinstein Amendment Doubles Down on NDAA

By Naomi Wolf, Guardian UK

06 December 12

While US government lawyers persist in defending the menacing Section 1021 in court, a Senate initiative makes matters worse

s I reported here, last spring a group of journalists and activists including Chris Hedges, Noam Chomsky and Tangerine Bolen, led by counsel Bruce Afran and others, sued President Obama to halt the implementation of Section 1021 in the National Defense Authorization Act (NDAA), which would have allowed for the indefinite detention of Americans without charge or trial. The vague definition of who could be detained included individuals who were seen to provide "substantial support" to al-Qaida's "associated forces" - wording that provided no protection for journalists interviewing, for example, detainees in Guantánamo, or activists and advocates working with prisoners on their cases.

I was present in Judge Katharine Forrest's New York courtroom when she repeatedly asked Obama's lawyers if they could assure her that Section 1021 could not be used to detain people engaged in journalism or peaceful protest. The government's lawyers repeatedly refused to give her those assurances, or assurances that US citizens were not already being detained under the NDAA. Forrest ultimately blocked the implementation of the act.

But the US government appealed the ruling. In October, a court agreed to stay the implementation of Forrest's injunction and hear the appeal. Afran has read the government's new brief for the case, and pointed out that the lawyers now argue that the NDAA won't be used to militarily detain individuals considered "independent journalists" or "independent" public advocates without charges or trial.

Who is considered an "independent journalist"? Afran noted, for example, that journalists associated with an outlet - like Bob Woodward - would not be considered "independent journalists", but self-employed or unemployed journalists are (though, in journalism, contracts and associations are much more complicated than that). He also added that almost all advocates are not "independent", as they are part of a movement or group with a philosophy. So, in the government's brief, the lawyers have gone even further than they did before in corralling new types of individuals who can legally be detained indefinitely without a civil trial.

To make matters worse, a recent development sees the threat of the NDAA on US citizens increasing. Democratic Senator Dianne Feinstein recently introduced an amendment to the 2013 NDAA, which, at first, seems to protect Americans' due process - but, on closer examination, can be easily misinterpreted. Afran said that the Feinstein amendment "puts a gloss" on a very dangerous situation,

"First of all, the Feinstein amendment does not say that people in the US can't be put into military custody. It simply says they can't be taken into indefinite military custody without 'trial'. If they are taken into military custody, they have to be given a trial of some sort - but not due process in a civil court. The [kind of] trial this refers to would be ... military tribunals. So the Feinstein amendment does virtually nothing for American citizens or people in the United States in terms of protection."

The original law at least left the issue of military detention somewhat ambiguous, but this amendment actually makes matters worse by explicitly allowing the military to take Americans into custody. The measure infringes on Americans' constitutional rights, asserts Afran, who explained that, since 1861, the US supreme court has written in at least four decisions that "people living in the US - citizens or not - cannot be taken into military custody and denied a trial in civil courts." Unforunately, should the NDAA go through, this becomes the law of the land:

"Our system says a law is in force unless a court says otherwise. The president is considering vetoing the bill. We don't know if it will be passed by the House, then signed by the president. If it is, we may have to go back to the trial court."

As for the amendment, major media - like the Huffington Post - are taking Feinstein's amendment at face value as a measure of preventing Americans from being indefinitely detained by the military. Even Michael McAuliff's HuffPo piece ran with an erroneous headline that read "Indefinite Detention: Senate Votes Down Military Imprisonment of Americans". The few other journalists who have actually been following this story closely agree with the activists, and the American Civil Liberties Union has also chimed in, saying that the amendment actually makes indefinite detention more likely.

Shahid Buttar of the Bill of Rights Defense agrees with critics of the Feinstein amendment. He also makes the point that it would legally open the door for domestic military deployment in America:

"While the Feinstein amendment may appear helpful by restoring due process for US citizens, it unfortunately creates a host of problems: it reinforced the 2001 Authorization to Use Military Force (AUMF) in Afghanistan as a basis for domestic military detention; offered protections only to the people least likely to face domestic military detention; invited domestic military deployment in violation of posse comitatus; and endorses a regime of unequal rights for immigrants that could destabilize other rights over time."

Many questions press on this issue: why are there repeated efforts by Congress to affirm the power of military detention of Americans? Why are Obama's lawyers drafting language that yet more broadly targets journalists and activists who might be subjected to military detention?

And, just as importantly, why is this appalling and historic set of developments not front-page news in every newspaper in the land?

Obama: Community Organizer to Robot President

By Tom Engelhardt, TomDispatch

05 December 12

ear President Obama,

Nothing you don't know, but let me just say it: the world's a weird place. In my younger years, I might have said "crazy," but that was back when I thought being crazy was a cool thing and only regretted I wasn't.

I mean, do you ever think about how you ended up where you are? And I'm not actually talking about the Oval Office, though that's undoubtedly a weird enough story in its own right.

After all, you were a community organizer and a constitutional law professor and now, if you stop to think about it, here's where you've ended up: you're using robots to assassinate people you personally pick as targets. You've overseen and escalated off-the-books robot air wars in Pakistan, Somalia, and Yemen, and are evidently considering expanding them to Mali and maybe even Libya. You've employed what will someday be defined as a weapon of mass destruction, launching history's first genuine cyberwar against a country that isn't threatening to attack us. You've agreed to the surveillance of more Americans every which way from Sunday than have ever been listened in on or (given emailing, texting, and tweeting) read. You came into office proclaiming a "sunshine" policy and yet your administration has classified more documents (92,064,862 in 2011) than any other in our history. Despite signing a Whistleblower Enhancement Protection Act, you've used the Espionage Act on more government whistleblowers and leakers than all previous administrations combined, and yet your officials continue to leak secret material they see as advantageous to the White House without fear of prosecution. Though you deep-sixed the Bush administration name for it -- "the Global War on Terror" (ridding the world of GWOT, one of the worst acronyms ever) -- you've accepted the idea that we are "at war" with terror and on a "global battlefield" which (see above) you're actually expanding. You're still keeping uncharged, untried prisoners of not-quite-war in an offshore military prison camp of injustice that, on the day you came into office, you promised to close within a year. You're overseeing planning that, according to recent reports, will continue the Afghan War in some form until at least 2017 or possibly well beyond. You preside over an administration that has encouraged the further militarization of the CIA (to which you appointed as director not a civilian but a four-star general you assumedly wanted to tuck safely away during campaign season). You've overseen the further militarization of the State Department; you've encouraged a major expansion of the special operations forces and its secret presidential army, the Joint Special Operations Command, cocooned inside the U.S. military. You've overseen the further post-9/11 expansion of an already staggering national security budget and the further growth of our labyrinthine "Intelligence Community" -- and though who remembers anymore, you even won what must have been the first prospective Nobel Prize for Peace more or less before you did a damn thing, and then thanked the Nobel Committee with a full-throated defense of the right of the U.S. to do what it pleased, militarily, on the planet! And if that isn't a weird legacy-in-formation, what is?

I mean, you have my sympathies. The Bush administration did you no favors. You inherited hell for a foreign policy and when it came to matters like Guantanano, the Republicans in Congress hung you out to dry.

Still, who woulda thunk it? Don't these "accomplishments" of yours sometimes amaze you? Don't you ever wake up in the middle of the night wondering just who you are? Don't you, like me, open your eyes some mornings in a state of amazement about just how you ended up on this particular fast-morphing planet? Are you as stunned as I am by the fact that a tanker carrying liquid natural gas is now making a trip from Norway to Japan across the winter waters of the Arctic? Twenty days at sea lopped off an otherwise endless voyage via the Mediterranean Sea, and the Indian and Pacific Oceans. Did you ever think you'd live to see the opening of the Northeast Passage in winter? Don't you find it ironic that fossil fuels, which helped burn that oceanic hole in the Arctic ice, were the first commercial products shipped through those open waters? Don't you find it just a tad odd that you can kill someone in distant Yemen without the slightest obstacle and yet you've been able to do next to nothing when it comes to global warming? I mean, isn't that world-championship weird, believe-it-or-not bizarre, and increasingly our everyday reality?

Aren't you amazed that your Pentagon has recently issued a directive meant to ensure that armed robots will never kill human beings on their own? Not so long ago, that was the stuff of sci-fi; now, it's the subject of a bureaucratic document. Tell that to Skynet someday, right?

Who could make this stuff up? Maybe William Gibson -- maybe he already did -- but not me and my guess is not you either.

Putting Yourself in a Box

I know that we humans are terrible at predicting the future. Still, if I had told you back in, say, 2003 that, in the wake of a lawless administration, we would vote a constitutional lawyer into the White House as a "peace candidate" and he'd do exactly what you've done so far (see, again, above), you wouldn't have believed it, would you? And if I had told you it would be you, I'll put my money on your laughing me out of any room (not that I've ever been in a room with you).

Just the other day, something leaked by two "administration officials" onto the front-page of the New York Times got me started on this letter. In a piece headlined "Election Spurred a Move to Codify U.S. Drone Policy," reporter Scott Shane wrote that, fearing you might lose to Mitt Romney, you were rushing to develop "a formal rule book," including "explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures." You won the election, of course, but Shane claims you're "still pushing" -- though at a far more leisurely pace -- "to make the rules formal and resolve... exactly when lethal action is justified."

To use your term, you are putting "a legal architecture" in place for a process of White House-directed robotic assassination -- you call them "targeted killings" -- that will assumedly be long-lasting. These are acts that in the years before 9/11, as Shane points out, Washington used to condemn when Israel committed them and that most countries consider illegal to this day.

I understand why the idea of Mitt Romney as assassin-in-chief made you nervous and why you wanted to put him in a straitjacket of drone codification. But it's hard not to ask -- and I'm not the first to do so -- what about you? It's human nature to trust ourselves over the other guy, but has it occurred to you that some of us might have the same reaction to you at the helm of a globalizing robot war as you had to Mitt?

In any case, haven't you already managed to do to yourself what you planned to do to him -- without cutting down the killing appreciably, including the deaths of civilians, children, at least four American citizens, and a Yemeni deputy provincial governor who had nothing to do with al-Qaeda? If press reports are to be believed, you've already been fully involved in regularizing, bureaucratizing, legalizing, and codifying your drone wars. In other words, you've put yourself deep inside a developing system in which you no longer have a hope in hell of imagining the world any other way.

Here's a little history of the process (not that you of all people don't already know it): You inherited an ad hoc Bush administration program of CIA drone strikes in the Pakistani tribal borderlands that started in 2004 and was originally aimed at top al-Qaeda types. But as will happen, those "targeted killings" became ever less targeted, spreading to lower level al-Qaeda types, Taliban leaders, Taliban "foot soldiers," and finally what came to be called "signature strikes" against "patterns of behavior." (A group of military-age males with weapons, say, in an area believed to be controlled by Islamic extremists.)

We know that President Bush took you aside at the changeover moment and urged you to continue the drone wars in Pakistan (along with his cyberwar program against Iran). And though it must have been very new to you, you did so, expanding them in Pakistan and extending them in a major way to Yemen, while ever more drone bases were built in key areas of the world and ever more drones ordered up.

As this happened, those wars became ever less ad hoc, ever more organized and bureaucratic. A regular process for deciding on individual "targets" came into being. You had your "baseball cards" (PowerPoint slides on potential individuals to target) that you discussed in your regular "Terror Tuesday" meetings. Where once George W. Bush kept in his desk drawer a "personal scorecard," a list of bad guys to cross out whenever one of them was killed, you now have an official "kill list." Where once these strikes were just launched, you got the Office of Legal Counsel to produce a 50-page legalistic justification for using drones to kill a U.S. citizen. It and other legal memos on drone use have never been released to the public or even to congressional leaders. Still, your top officials feel free to use them to their advantage in public defense of U.S. counterterror policies. (Note that the Bush administration did the same thing with its torture policies, producing Justice Department "torture memos" that "legalized" acts which, in almost any other context, or if committed by any enemy nation, would have been denounced as nightmarish acts of international illegality and that, in the past, the U.S. had prosecuted as crimes of war.)

Now, Shane reports, you've had the urge to codify it all and so institutionalize a presidential right to conduct assassination campaigns without regard to Congress, the American people, national sovereignty, the world, or previous standards of legality. And that is an accomplishment of the first order. I mean -- Voilà! -- you've officially created the box that no one can think outside of.

You are -- so the story goes -- the most powerful man on Earth. From the Oval Office, you should have the widest of wide-angle views. But sometimes don't you feel that you're trapped like a rat inside a maze in part (but only in part) of your own creation?

Dreaming Before It's Too Late

Of course, I've never gotten nearer to the Oval Office than Pennsylvania Avenue, so what do I know about how it's like there? Still, I'm older than you and I do know how repetitive acts rigidify, how one possible way morphs into the only way, how one limited system of living comes to seem like the only option on Earth. It happens with age. It also happens in Washington.

The other day, I noted this little passage in a New York Times report on the discovery of huge quantities of ice on Mercury: "Sean C. Solomon, the principal investigator for [the spacecraft] Messenger, said there was enough ice there to encase Washington, D.C., in a frozen block two and a half miles deep." I couldn't help smiling. After all, the Washington I read about already seems enclosed in a block of ice, which is why, when it comes to the world, it so seldom thinks a new thought or acts in a new way.

If only you could reverse time and take a step back into the world of the community organizer. After all, what does such an organizer do, if not try to free people from the rigidities of their lives, the boxes they can't think outside of, the blocks of ice they're encased in, the acts that have come to dominate them and regularly wipe out any sense of alternative possibilities? What's the point of community organizing if not to allow people to begin to imagine other ways of being and becoming?

Maybe you don't even realize how you've been boxed into, and boxed yourself into, the codifications from hell, almost all based on our militarizing way of life. Outside that box where the bureaucratized killing takes place, where the "wars" are fought, and the battle plans are endlessly recalibrated in ways too familiar to matter, outside the airless world of the National Security Complex where one destructive set of ways has become the only way, there surely are other possibilities that could result in other kinds of worlds. After all, just because you're trapped in a box doesn't mean that the world is. Look at the Middle East. For better or worse, it visibly isn't.

Back in 2009 when you first took office, I wrote a speech for you. In it, "you" told the American people that you were "ending, not expanding, two wars." I knew that you would never give such a speech (no less read mine), but I did believe that, despite the "wisdom" of Washington, you could indeed have put both of Bush's wars -- Iraq and Afghanistan -- behind you. We'll never know, of course. You chose another path, a "surge" of 30,000 troops, CIA operatives, special forces operators, private contractors, and State Department types that led to yet more disastrous years in Afghanistan.

Unfortunately, the ghostly what-ifs of history count for nothing. Still, haven't you ever wondered whether something else wasn't possible? Whether, for instance, sending bombs and missiles into poverty-stricken, essentially energy-less, essentially foodless Yemen was really and truly the way to world peace?

My apologies! I let sarcasm get the better of me. How about: really and truly the way to enhance U.S. national security? Honestly, Yemen? Most Americans couldn't find it on the map to win the lottery, and according to reports, American drone and air strikes have actually increased membership in al-Qaeda in the Arabian Peninsula. And yet you won't stop. You probably can't.

Similarly, don't you ever wonder whether a "pivot" to Asia, mainly involving military power and guaranteed to exacerbate regional relations in the Pacific is the best way to deal with the rising power of China? After all, what would it mean to go to war with the country which now holds well more than $1 trillion in U.S. debt? Wouldn't it be like shooting ourselves in the foot, if not the head?

And don't you ever wonder whether a labyrinth of 17 (yes, 17!) major agencies and outfits in the U.S. "Intelligence Community" (and even more minor ones), spending at least $75 billion annually, really makes us either safe or smart? Mightn't we be more "intelligent" and less paranoid about the world if we spent so much less and relied instead on readily available open-source material?

I mean, there are so many things to dream about. So many ghostly possibilities to conjure up. So many experimental acts that offer at least a chance at another planet of possibility. It would be such a waste if you only reverted to your community-organizer or constitutional-law self after you left office, once "retirement syndrome" kicked in, once those drones were taking off at the command of another president and it was too late to do a thing. You could still dream then, but what good would those dreams do us or anyone else?