Forum Post: Can Broadened "Counterterrorism" Rules Open Door to Indefinitely Detaining Peaceful Protesters?
Posted 12 years ago on Dec. 14, 2011, 8:12 a.m. EST by LeoYo
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Can Broadened "Counterterrorism" Rules Open Door to Indefinitely Detaining Peaceful Protesters?
Tuesday 13 December 2011
by: J.A. Myerson, Truthout | News Analysis
A lot has been written recently about the recent militarization of US police forces. The impression is inescapable in an atmosphere saturated with imagery of Occupy protesters being bullied by domestic police who wield militarized weaponry, clad in what used to be thought of as riot gear, but is now a de rigueur feature of official responses to things that do not resemble nor threaten to become riots. It appears this militarization comes partly courtesy unprecedented and legally dubious collaboration between civilian police and the CIA. According to The Huffington Post:
Since the Sept. 11 terrorist attacks, the New York Police Department has become one of the nation's most aggressive domestic intelligence agencies, targeting ethnic communities in ways that would run afoul of civil liberties rules if practiced by the federal government, an Associated Press investigation has found.
These operations have benefited from unprecedented help from the CIA, a partnership that has blurred the line between foreign and domestic spying.
The department has dispatched undercover officers, known as "rakers," into minority neighborhoods as part of a human mapping program, according to officials directly involved in the program. They've monitored daily life in bookstores, bars, cafes and nightclubs. Police have also used informants, known as "mosque crawlers," to monitor sermons, even when there's no evidence of wrongdoing.
So much of what cops have been training to confront for the last decade has been the threat of low-scale, low-intel urban terror plots that they have brandished that training on nonviolent civilians who constitute a PR threat to the banks, not an explosive one.
And it's not just the rank-and-file police officers either. Police forces have even brought out the terrorism experts to survey and harass Occupy Wall Street. As I reported the day of the protesters' eviction from Zuccotti Park:
In the smallest hours of the morning, with no warning or apparent provocation, hundreds of New York Police Department (NYPD) officers, some from the department's counterterrorism unit, many in riot gear, demolished thousands of dollars of private property, including a 5,000-volume library; beat and arrested a large number of peacefully protesting citizens, including credentialed journalists and democratically elected public officials; and in the process, violated not just the First and Fourth Amendments to the US Constitution, a document they are sworn to uphold, but also a court injunction.
News broke this week that City of London police distributed a letter cautioning businesses to beware of terrorism, listing Occupy LSX alongside al-Qaeda as a threat. It is outrageous to equate nonviolent, politically principled civil disobedience with violent nihilistic extremism, an injustice not least to the families of victims of actual terrorism. But the issue here goes beyond that outrage; there is actual material danger to dissidents if the occupiers-as-terrorists mythos grows too much.
In passing the 2012 National Defense Authorization Act (NDAA), Congress, in the words of the American Civil Liberties Union (ACLU), has just voted to, "authorize the military to go literally anywhere in the world to imprison civilians - even American citizens in the United States itself - without charge or trial." The ACLU calls it what it is: "Prison based on suspicion alone." The vote on the Udall Amendment, which would have forbidden the indefinite detention of US civilians, was defeated by a vote of 60-38 in the Senate, including all but three of the senators from the party that's constantly pretending to be anxious over an intrusively big government.
The Republicans who argued against the measure on the floor of the Senate naturally attributed their effective support for the abolition of the Fourth Amendment to the threat posed by terrorism. The White House has threatened to veto the NDAA, but not because the detention policies grant too much power to law enforcement - instead, because they grant too little:
In their current form, some of these provisions disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism ...
The problem is, the Fourth Amendment is the precondition for the First Amendment. If a person can be detained without a charge leveled, then a person can be detained without a crime even alleged to have been committed - including for confrontational, peaceable assembly. The more frequent the insinuation, either through communiqués or direct treatment, that occupiers constitute a terrorist threat, the more worried dissident citizens are right to grow that they'll be the targets of rights abridgment designed to stamp out terrorism. Muslim members of Occupy Wall Street have already noted their targeting for special interrogation and scrutiny at Occupy events.
People are quite right to be alarmed by the picture this paints. While no one has any indication that the government will begin indefinitely imprisoning nonviolent dissenters, the mere loss of impediments is reason enough to prick up one's ears with suspicion. After all, Rep. Jerrold Nadler's (D-New York) letter to the Department of Justice (DOJ) hinted at the facilitation of an unaccountable police state in his mention of "unlawful surveillance of individuals" involved in Occupy Wall Street, whose Liberty Plaza Park is in Nadler's district.
Meanwhile, the Levy Economics Institute of Bard College released a paper today called "$29,000,000,000,000: A Detailed Look at the Fed's Bailout by Funding Facility and Recipient." [PDF] That's awfully close to half of gross world product, a figure which sat at $63.17 trillion last year. And no one considers that terrorism.
Is the Use of the Military Designed for the Occupy Movement?
Monday 12 December 2011
by: Kevin Zeese, October2011.org | News Analysis
A radical change in law to allow the use of the military inside the United States, against U.S. citizens and residents, and to allow their indefinite military detention based merely on suspicion of being engaged in hostilities against the U.S is being rushed through congress. This amendment, sponsored by Senators Carl Levin and John McCain, was added in the senate after a closed door hearing and has received overwhelming bi-partisan support on the senate floor, with very little debate.
At the request of the White House, language that exempted American citizens and legal residents from indefinite military detention was removed from the bill passed by the Senate Armed Services Committee, as Senator Levin said on the senate floor.
This is a major shift for a country that has largely forbidden the use of the military domestically under the Posse Comitatus Act since it passed in 1878 during the Reconstruction Era. There have been holes in the domestic use of the military, primarily in drug enforcement. Indeed, I worked on one case involving Esequiel Hernandez, an innocent 18 year old high school student killed while herding the family goats on the Texas-Mexican border by a 19 year old Marine on drug patrol in 1997. The Hernandez killing showed why the U.S. military is the wrong tool for enforcement inside the United States and raises questions for young soldiers ordered to turn their weapons on Americans.
On December 9, Occupy Washington, DC on Freedom Plaza had a discussion on the Department of Justice’s responsibility to uphold the rule of law when it comes to human rights’ abuses by the military and CIA such as torture and the killing of civilians. During that discussion, Ray McGovern, a retired 27 year veteran of the CIA, who provided the morning intelligence briefing to multiple presidents and security advisers, said that he thought the provisions allowing domestic use of the military and military detention were being added because of fear of civil unrest at home.
The Tea Party and Occupy Movement are signs of an American revolt – a revolt against a corrupt government that funnels wealth to the top 1% while leaving Americans economically insecure. When I asked McGovern about this, he said he could not see any reason for the domestic use of the military except for the fear of the elites:
“I think it may be fear. They worry that the DC police, Park Police, even Capitol Police will be subverted into seeing that they are really part of the 99%; that when push comes to shove (literally) they cannot be relied upon to carry out mass arrests/imprisonments; that the powers-that-be need to be able to call on the Army, which can be more dependably relied upon to carry out whatever bloody orders may be required at the time.”
In fact, there have been examples of police being critical of their orders and not participating in efforts to arrest or remove occupiers. In Albany, NY police refused to arrest occupiers saying they were not causing any trouble. In Baltimore, the police union endorsed Occupy Baltimore and urged the mayor to let them stay. Retired Philadelphia Police Captain Ray Lewis went to Zucotti Park to urge police to join the occupiers. When a police commander in New York pepper sprayed kettled women, you can hear another police officer saying on the video tape, “I can’t believe he just pepper sprayed her.” Oakland police officer Fred Shavies who had gone undercover against the Occupy Movement now says he supports it and knows police are part of the 99%.
From the beginning at Freedom Plaza, we have described the police as part of the 99%. Police have mostly treated us with respect; some have even made financial donations to our effort. Those police who abuse their power will create more divides among police and pull more to our side because most know we only seek fairness, justice and participatory democracy.
But, will the military obey orders to shoot Americans or make mass arrests of non-violent civilian protesters? That is an open question. There is dissent in the military as well. United States Marine Corps. Sgt. Shamar Thomas from Roosevelt, NY told New York City police, in a widely watched, now iconic video, there is no heroism in attacking unarmed civilians. No doubt many who have volunteered to serve in the military feel the same way as Sgt. Thomas.
The vague language of the amendment allows the military to be used against protesters. In subsection A of Section 1032 it states that the military can be used against people (including U.S. citizens) that “are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or (B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A). The key, vague words are “substantially supporting” “associated forces” “engaged in hostilities” “in aid of a . . . organization or person.” There is a lot of flexibility in those words and when they apply – no need for probable cause, a trial, jury verdict or sentencing – just on suspicion you get indefinite military detention.
The military’s role in the United States has been growing. In 2002 President Bush established NorthCom, a military command inside the United States based in Colorado with additional bases in Alaska, Florida, Texas, Virginia and the DC area. On October 1, 2008, the 3rd Infantry Division (United States)’s 1st Brigade Combat Team was assigned to U.S. Northern Command, marking the first time an active unit had been given a dedicated assignment to Northern Command. In 2008, the Pentagon announced plans to deploy 20,000 troops inside the United States, set to be trained by 2011. The change in law in the new Defense Authorization comes at a time of rapidly creeping domestic military expansion.
Could the elites actually see protesters seeking a participatory democracy who challenge concentrated wealth as terrorists? Well, in a December 2, 2011 a document issued by City of London police entitled a “Terrorism/extremism Update” given to London businesses, the police defined Occupy London as a terrorist group. In the section on domestic terrorism the Occupy Movement and other critics of capitalism were singled out as terrorists. As the Guardian reported the document said: “As the worldwide Occupy movement shows no sign of abating, it is likely that activists aspire to identify other locations to occupy, especially those they identify with capitalism.” The document went on to say that police had “received a number of hostile reconnaissance reports concerning individuals who would fit the anti-capitalist profile,” and asked businesses to be “vigilant for further sign of occupation activity.”
When the Guardian asked the police about the document rather than apologizing, they defended it saying the “City of London police works with the community to deter and detect terrorist activity and crime in the City in a way that has been identified nationally as good practice . . . We’ve seen crime linked to protests in recent weeks, notably around groups entering office buildings, and with that in mind we continue to brief key trusted partners on activity linked to protests.” While the terrorist label has not been applied to U.S. occupiers, the counterterrorism unit of the NYPD has been used at Zucotti Park.
The Occupy Movement is in its infancy, less than three months old, and already it has the elites petrified. As a top Republican pollster, Frank Luntz, told a Republican Governors meeting last week, I’m “scared of this anti-Wall Street effort. I’m frightened to death.” The Tea Party, which has its roots in similar economic insecurity and economic unfairness has for the most part been co-opted by the Republican Party and lost its energy, but the Occupy Movement has resisted co-option by the Democratic Party and its operatives.
The Occupy Movement, despite more than 5,100 arrests and aggressive police actions across the country, is not going anywhere. In fact, it strives to become an even bigger movement and more powerful political force. Plans are being made to bring occupiers from across the country to Washington, DC for an American Spring. If the elites are scared now, what will it be like when this movement grows and matures?
This is all occurring when economic insecurity is getting worse. The economy is not done collapsing, critical resources are getting more limited and hence more expensive, the greed of the elites seems unquenchable, the global economy means that the middle class will have a hard time getting decent paying jobs as more jobs are shipped to less expensive labor markets and the very limited social safety net is under attack while poverty rises. The elites know they are not solving critical problems, are incapable of doing so because of their own corruption and that the political system cannot respond. As economic insecurity gets worse, the economic unfairness becomes more evident resulting in growing anger and action.
It is not that the economic problems are unsolvable. When Occupy Washington, DC held its own Occupied Super Committee hearings and asked experts to put forward evidence-based solutions to the economic mess, they did so. By facing up to the 1% and the military industrial complex, we achieved the super committee’s deficit reduction targets in two years, created millions of jobs, forgave student debt, restored the housing market and began to democratize the economy. Knowing solutions exist, but the dysfunctional government cannot implement them will lead to more Americans joining the Occupy Movement.
One of the gravest grievances described in the Declaration of Independence was the misuse of standing armies against the colonialists. Numerous state constitutions declared standing armies a threat to liberty and the U.S. Constitution showed antipathy to militarism. Now, the Congress and President Obama are prepared to turn the military against Americans and allow indefinite military detention without any finding of guilt. If the elites think military force against Americans will quell the revolt of the people they are wrong; it will have the opposite effect and fuel the revolt against the elites.
Wednesday, December 14th is a national day of action against the use of the military in the United States.
More Information: Christopher A. Andrews, Behind Closed Doors: Congress Trying to Force Indefinite Detention Bill on Americans, Huffington Post, December 9, 2011.
David Kopel, Defense bill will allow President to indefinitely detain American citizens, The Volokh Conspiracy, November 30, 2011.
Glenn Greenwald, Congress endorsing military detention, a new AUMF, Salon, December 1, 2011.
Coleen Rowley, BRINGING the War on Terror Home, Consortium News, December 4, 2011.
Matt Taibbi, Indefinite Detention of American Citizens: Coming Soon to Battlefield U.S.A., Rolling Stone, December 9, 2011.
Congress vs. the Constitution
Tuesday 13 December 2011
by: Shahid Buttar, Truthout | News Analysis
Controversy over the National Defense Authorization Act (NDAA), and its particular provisions for expanding military detention without trial, finally broke into the national news last week after Dick Cheney helped secure a monumental neoconservative victory in the Senate in late November. This debacle over fundamental rights holds implications for Congress, for the media and for the 2012 presidential race. It also dramatically impacts the Constitution, the Tea Party, and the Occupy movement.
Recurring failures by Congress to consider either reason, civil rights or national security are unfortunately well established. The PATRIOT Act has been in force for a decade, invading the rights of law-abiding Americans since a stunning display of Congressional incompetence in 2001. Few members of Congress even read the bill before passing it with only a single dissenting vote in the Senate.
In 2005, journalists risked prosecution to reveal a secret wiretapping scheme by the National Security Agency (NSA). Since then, every federal court ever to have reviewed the program on the merits has ruled it unconstitutional, while higher courts insulated mass wiretapping by ruling that executive secrets lie beyond judicial review. Yet, perhaps predictably, Congress also authorized that unconstitutional program through the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008.
The FISA struggle is relevant today for two reasons. First, much as he has promised to veto the NDAA over its expansion of military detention, President Obama pledged in 2008 (when a senator) to filibuster the FISA amendments. Then he caved, not only failing to mount a filibuster, but completely reversing positions and voting for the bill, authorizing ongoing NSA crimes and insulating telecom companies for their roles in ongoing abuses en masse.
Grassroots mobilization is necessary to force the president to hold true to his promise and to keep the Senate from overriding the veto.
Second, both PATRIOT and FISA dramatically expanded government surveillance programs, which violate the privacy of law-abiding Americans. But arbitrary detention without trial, of the sort authorized under the 2011 NDAA, is even worse: it denies the freedom of law-abiding Americans, striking the right to trial, access to counsel and the role of independent courts.
The NDAA's military detention provisions thus represent a frontal attack on the Fifth Amendment (which once guaranteed due process) and the Sixth Amendment (which once ensured the rights to trial, access to counsel and an opportunity to confront accusers). They also deeply erode the First Amendment - but in a less obvious way, and a way in which any activist would do well to consider.
Last spring, the Supreme Court decided Humanitarian Law Project v. Holder, upholding the conviction of a charity prosecuted for supporting conflict resolution workshops in Turkey. The Court held that, under the PATRIOT Act's material support provisions, a defendant may be held guilty of material support for terror without ever intending to support violence.
Months later, the FBI conducted raids of property of dozens of peace and justice activists. Today, it continues an investigation that has stretched beyond a year. It's one thing for activists to be monitored, infiltrated and then harassed by government authorities for their speech and political views.
The NDAA would vastly enhance those government powers, creating the authority to detain indefinitely without trial. Mere accusation would be enough to deny freedom to law-abiding people. Rather than face FBI harassment, those activists - and any others raising awareness about issues like foreign policy or corporate environmental policies - could face the American equivalent of a gulag.
The PATRIOT Act's material support provisions allow our government to criminalize speech and repress political dissent, a frontal assault on the First Amendment. And with material support cases grounded in associational guilt, the First Amendment is also eroding from its figurative sides.
The NDAA would expand those assaults by eliminating the need to prosecute. In the hands of a president, attorney general, US attorney, or even, potentially, state or local prosecutors willing to use their powers for political purposes, it offers the legal authority for severe repression.
Ironically, groups most likely at risk for military detention represent diverse interests: the Occupy movement has been addressed as a terror threat by London police and various critics in the United States, and Tea Party groups have raised concerns about counterterrorism scrutiny of militia movements. These characterizations are bad enough, but creating the authority to detain individual participants indefinitely is vastly worse.
For any activist, resisting the NDAA is a matter of self-interest. Groups around the country, including Occupy sites in San Francisco, Los Angeles and Tacoma, Washington, as well as the United National Antiwar Coalition and Bill of Rights Defense Committee, will mobilize this December 15 to celebrate Bill of Rights Day. With the future of our Constitution hanging by a thread, this is no time to watch silently from the sidelines.