Posted 11 months ago on Feb. 21, 2014, 3:29 p.m. EST by LeoYo
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Local Resistance to the NDAA Amps Up, Spans Political Spectrum
Friday, 21 February 2014 10:44 By Britney Schultz, Truthout | Report
A recent decision by the Obama administration to consider a drone strike against a US citizen and perceived "terrorist" brings the conflict of executive authority and civil and constitutional rights back in the spotlight as local resistance to the NDAA is spreading across the country.
On February 10, 2014, The Associated Press reported that the Obama administration was considering a drone strike against an American citizen, who - officials say - is a terrorism threat to the United States. This story has brought the Authorization for Use of Military Force (AUMF) and its legal implications back into the limelight.
Author and activist David Swanson recently raised the question of the difference between "legality" and "policy": "Under the US Constitution, the laws of the nations in which drone murders take place, treaties to which the US is party, international law and US statutory law, murdering people remains illegal, despite being policy, just as it was illegal under the less strict policy of some months back."
Last May, Obama changed his overseas drone policy to shift control of the weapons from the CIA to the Department of Defense. This means that American citizens suspected of posing a terror threat can be bombed by the military only and not the CIA, which puts the onus on the DOJ to prove the person can be classified an "enemy combatant."
Marjorie Cohn, a professor at Thomas Jefferson School of Law, says there is an administrative procedure to decide whether someone is an enemy combatant. Once someone is designated as such, he or she can file a petition for writ of habeas corpus in the federal district court to prove he or she is innocent of any terrorist connections and that court could release the individual. "But this rarely happens," she said.
In a fact sheet released by the White House last year, the policy, as it applies to American citizens, is explained:
If the United States considers an operation against a terrorist identified as a US person, the Department of Justice will conduct an additional legal analysis to ensure that such action may be conducted against the individual consistent with the Constitution and laws of the United States.
Yet directly after this, the statement reads: "These new standards and procedures do not limit the President's authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies."
In a press release responding to the AP report, Hina Shamsi, director of the American Civil Liberties Union's National Security Project, said:
The government's killing program has gone far beyond what the law permits, and it is based on secret evidence and legal interpretations. The targeted killing of an American being considered right now shows the inherent danger of a killing program based on vague and shifting legal standards, which has made it disturbingly easy for the government to operate outside the law.
The implications of the Obama administration's recent deliberation can be applied to a broader context when examined through the lens of the 2012 National Defense Authorization Act (NDAA), which allows the US military to detain any American citizen it deems a terrorism suspect. But are there any real assurances that American citizens' constitutional rights will be respected?
Hedges v. Obama
In January 2012, a group of journalists, activists and academics, including Chris Hedges, Noam Chomsky and Daniel Ellsberg, filed a lawsuit challenging the constitutionality of the NDAA.
Opponents of the NDAA claimed a victory in 2012 when US District Judge Katherine B. Forrest of the Southern District of New York declared Section 1021 of the NDAA unconstitutional. Forrest said the language of the provision, which allows for indefinite detention without trial, was too vague and that it could possibly violate citizens' First Amendment rights.
The White House immediately appealed Forrest's decision. And in July 2013, the US Court of Appeals for the Second Circuit ruled 3-0 that the American co-plaintiffs could not challenge the NDAA because they lacked standing.
On February 6, 2014, the New Hampshire state House of Representatives approved HB 1279, which states, "This bill prohibits the state, political subdivisions, and the national guard from participating in enforcement of the counterterrorism detainment provisions of the 2012 National Defense Authorization Act." The bill will next be considered by the Federal Relations and Veterans Affairs committee of the state Senate and is slated to take effect January 1, 2015.
Other states have introduced similar legislation, such as Montana's HB 522, which was vetoed by Gov. Steve Bullock in April 2013. Hawaii formally has opposed indefinite detention, while Virginia codified state noncompliance with federal agents by passing HB 1160 in April 2012. In fact, 2012 saw a flurry of states introducing bills in opposition to the NDAA.
While the plaintiffs to the Hedges v. Obama suit hail from the left wing of the political sphere and opposition to the statute is often considered a progressive issue, grassroots opposition comes from across the political spectrum.
Activists and lawmakers have used the legislative approach to voice their opposition to the NDAA, but Dan Johnson, founder and national director of People Against the NDAA (PANDA), says a grassroots approach is more effective.