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While You Weren’t Watching, Obama Renewed Dark Side Laws

The American Way of Life: Wiretaps and Indefinite Detention

Americans are almost entirely unaware that, a year ago, President Obama signed into law an act that contained the most brazen trespass upon our civil rights in modern history.

This was a budgetary law, the National Defense Authorization Act (NDAA), that primarily funded the military and defense expenditures for the coming year, but it added a frightening provision: the president could could turn over to the military anyone, including American citizens, merely suspected of being a terrorist or associating with terrorist groups for indefinite detention without due process, without the right of habeas corpus, without trial. Stripped of our system’s legal safeguards of individual freedom, a person could effectively disappear.

It was an extraordinary action by any president, as we reported then, and stunning by a former professor of constitutional law at the University of Chicago. It was not surprising that he chose a moment to sign the law when no one was looking: New Year’s Eve. Obama then said he would not not use the law to imprison a U.S. citizen, but this from the man who had also promised to close Guantanamo. And the law is on the books for any future president to apply.

At the end of this December, Congress had the opportunity to fix the law, as it voted for the 2013 NDAA. An imprecise amendment from Diane Feinstein (D-Cal) explicitly barred placing U.S. citizens in military custody without a trial, but that left the door open for civilians to be transferred to a military prison after a trial. It was at least an attempt to temper the law, but astonishingly, it failed. Here is a law which, as we will see, was enjoined in federal court as unconstitutional, yet that deterred Congress not at all from blessing it again, unchanged. Feinstein’s amendment was removed from the bill in a House-Senate conference committee led by John McCain (R-Ariz).

Section 1021 of the NDAA that allows the President to turn over to the military even American citizens suspected of being a terrorist, further includes anyone who has had contact with a terrorist, or contact with “associated forces” or is suspected of giving “substantial support” to a terrorist organization. None of the quoted terms is defined in the law.

That led to a challenge. Pulitzer-winner war correspondent Chris Hedges, the outspoken public intellectual Noam Chomsky, and Daniel Ellsberg, best known for exposing the secret Pentagon history of the Vietnam War — three of a total of eight journalists and activists, with lawyers working without fee — sued the government on constitutional grounds. What would prevent reporters from disappearing into military prisons for making contact with whatever the government decided to term “associated forces”? What if you (yes, you, reader) gave innocently to a charity that proved to be a conduit to a terrorist organization? What would prevent your being swept away into the system for years — or for good — for “substantial support”?

In mid-May of 2012, a federal judge appointed by Obama, Katherine Forrest of the U.S. Eastern District in New York, ruled that the law is "facially unconstitutional", that its vague terms would “chill” the most penetrating work of journalists and interfere with First Amendment freedom of the press (more here).

The Obama administration does not want penetration. What was remarkable was the urgency with which government lawyers appealed Judge Forrest’s permanent injunction preventing the law from going forward. They asked for and got a temporary stay in return for a promise that they would not jail the plaintiffs or American citizens under the law pending hearings in January and a ruling by the appeals court.

Hedges, writing of the group’s case against the government at Truthdig, suspects the government rushed to restore parts of the law because it is already in use — in Afghanistan. That dovetails with the curious struggle between American officials and Afghan President Hamid Karzai about hanging onto the American-built Bagram prison where, according to this CBS report, there were a year ago more than 3,000 inmates, five times the 600 Obama inherited from the Bush administration. Former detainees reported to the International Committee of the Red Cross that they had been held in 35-square-foot cages, at times in isolation, subjected to the cold, deprived of sleep and mistreated in other ways.

Karzai ordered the transfer of the prison to Afghan control, but a two-month extension negotiated by Obama has expired without U.S. compliance. A New York Times article cites “57 prisoners held there who had been acquitted by the Afghan courts but who have been held by American officials at the prison for more than a month in defiance of release orders” and Karzai’s office says hundreds of new prisoners are held by American forces in a closed-off section called the Detention Facility.

It is a government that likes secret and indefinite detention, wherever.

Mr. Obama seems to like New Years for getting things done when no one is looking. On the Sunday the day before New Year’s Eve, he signed a 5-year extension of illegal wiretapping begun by the Bush administration that was later sanitized by amendments to the Foreign Intelligence Surveillance Act (FISA).

The act authorizes wiretapping without a warrant of Americans who communicate with overseas “targets” enumerated by agencies such as NSA and CIA, removing without due process the Constitution’s Fourth Amendment protection from those persons' rights. Civil liberties proponents have always assumed that the eavesdropping dragnet pulls in the phone and e-mail traffic of vast numbers of other Americans. Senators themselves made three attempts in this renewal of the act to insert some oversight and privacy protections, but all were turned back by large margins.

Not just the Obama administration but the legislature as well likes secret surveillance powers over the public. Congress has routinely renewed laws, once thought to be temporary, that trample the Constitution in the guise of national security, laws that have taken on a permanence even though we are eleven years on from 9/11.

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