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Thursday, 20 September 2012 11:15

Cruel & Unusual Punishment: NDAA

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Is It Constitutional to Abolish the Constitution?

With the election around the corner, the stakes are high on an array of important issues.  Republican Presidential candidate Mitt Romney made it abundantly clear the other night that his primary concern is to increase the wealth for billionaires at the expense of everyone and everything else. Under Mitt Romney, the United States will become a third world nation consisting of the rich and the poor, period.  It will be the end of the middle class economy as we know it.  Mitt Romney talks a good game about helping the middle classes, but his policies would have the opposite effect.

Romney would implement the same George W. Bush policies that ran the economy into the ground.  To his credit, President Obama has been attempting to strengthen the middle class economy.  And as former President Bill Clinton said, it took Bush and the Republicans eight years to drain the country dry leaving trillions of dollars of debt at their exit, and now they complain that Obama didn’t clean up their mess fast enough—so they want back in again so they can execute the very same policies that created the mess in the first place.

Having said that—as we learn more about President Obama’s efforts to improve the economy, to provide more green jobs and subsidies for solar and wind, to improve health care for millions who previously went uninsured, as well as many more solutions designed to improve the state of our middle class economy addressed at the Democratic Convention, the NDAA (National Defense Authorization Act) continues, behind the scenes, to be a threatening fire to our rights.  It is no exaggeration to say that it will mean the difference between living in a free society or in a totalitarian state.  I suggest that we don’t throw Obama under the bus on account of the NDAA, but rather we must apply pressure with loud voices of opposition at the White House and at the Supreme Court.

Beginning with the Bush administration and continued through the Obama administration, as stipulated under the NDAA, a president can claim the right to order American citizens imprisoned with no charges and without the right to a trial.  What does that mean? To summarize, here are the liberties that define a free and civil democracy expunged under the NDAA.    


Constitutional Rights Abolished under the NDAA:


• Right to Know Specific Charges against us…
• Right against Unreasonable Searches and Seizures…
• Right to a Speedy and "Public" Trial…
• Right to an Impartial Jury…
• Right to Confront Witnesses against us…
• Right to a Lawyer…
• Right to Call Witnesses for us…
• Right against Self Incrimination…
• Right against Double Jeopardy …
• Right against Cruel And Unusual Punishments Inflicted…
• Right Against Slavery And Involuntary Servitude Without Being Duly Convicted…
• Right to Peaceably Assemble and to Petition for Regress of Grievances…
• Right to Life Liberty and the Pursuit of Happiness...


Americans must speak out and express their outrage at the White House and at the Supreme Court if we want to protect our individual liberties.  


Constitutional lawyer and columnist at The Guardian, Glenn Greenwald, is doing his best to keep the public informed. Here is a lucid summary he’s written regarding the NDAA and the recent decision under Judge Katherine Forrest who rightfully ruled that the NDAA is unconstitutional:  


In May, something extremely rare happened: a federal court applied the US constitution to impose some limits on the powers of the president. That happened when federal district court judge Katherine Forrest of the southern district of New York, an Obama appointee, preliminarily barred enforcement of the National Defense Authorization Act (NDAA), the statute enacted by Congress in December 2011 with broad bipartisan support and signed into law by President Obama (after he had threatened to veto it).


Greenwald explains what is in the NDAA and why it is so anti-American and unconstitutional:


That 2011 law expressly grants the president the power to indefinitely detain in military custody not only accused terrorists, but also their supporters, all without charges or trial. It does so by empowering the president to indefinitely detain not only al-Qaida members, but also members of so-called "associated forces", as well as anyone found to "substantially support" such forces – whatever those terms might mean. wrote about that decision and the background to this case and the background to this case when it was issued.


The NDAA is something you would expect to see in a totalitarian state, indeed, there’s never been a time in our history, during war or peace, when a President of the United States has given himself the authority to order American citizens, or anyone for that matter, to prison indefinitely, without due process, without burden of proof, without a trial or defense or right to an attorney.  George W. Bush initiated this extremely un-American legislation in the Patriot Act and our Congress shamefully approved, but President Obama not only broke his 2008 vow to reverse Bush’s unconstitutional laws-trend, he widened the radical scope to include the following:


Read this VERY carefully:


What made Judge Forrest's ruling particularly remarkable is that the lawsuit was brought by eight journalists and activists, such as former New York Times reporter Chris Hedges, Daniel Ellsberg, Noam Chomsky, and Birgitta Jónsdóttir, who argued that their work, which involves interactions with accused terrorists, could subject them to indefinite detention under the law's broad and vague authority, even for US citizens on US soil. The court agreed, noting that the plaintiffs presented "evidence of concrete – non-hypothetical – ways in which the presence of the legislation has already impacted those expressive and associational activities". The court was particularly disturbed by the Obama DOJ's adamant refusal to say, in response to being asked multiple times, that the law could not be used to indefinitely detain the plaintiffs due to their journalistic and political activities.

Speaking as a political critic of U.S. war policies in the Middle East, the illegal pre-emptive invasion of Iraq and Obama administration’s drone attacks and secret kill list, I find this section of the NDAA chilling and extremely alarming—because what it means is that Obama
refuses to rule out journalists who could be interpreted as aiding and abetting the so-called ‘persons of interest’ when they’re only trying to get all sides of the story; or they may simply be  critical of the president’s foreign policies; either way, political editors and writers have good reason to fear the NDAA.  The threat of indefinite detention for being critical of the president’s foreign policies is enough to create a chilling ripple effect across the U.S. media/press.


For example, consider this possible rendition of the NDAA: if a journalist supports Julian Assange, and Julian Assange is on the president’s ‘enemy list,’ journalists who continue to defend and support Assange could be thrown in prison indefinitely under Obama’s authority, given the broad interpretation of the NDAA.  Keep in mind, Obama refuses to verify that it wouldn’t go that far or that it wouldn’t apply to journalists.  


It’s a stretch but it could be argued that under this broad interpretation, anyone who criticizes the president’s war policies could theoretically be thrown in prison indefinitely without charge, lawyer, defense, burden of proof, in short, without due process.  The NDAA is a legal enforcement of Bush’s stupid statement: “You’re either with us or against us.”


Barack Obama placed his hand on the Bible and took an oath, vowing to uphold and defend the Constitution.  This is not an empty ritual.  Did anyone hear him take an oath to ban the Constitution?


Now it is up to the Supreme Court to rule in favor of the Constitution or in favor of having a dictator-President who is above the Law of the Land.  Your voices need to be heard; we need to join the few brave journalists such as Glenn Greenwald and Chris Hedges and others to make it clear to President Obama and to the Justices that we will not allow them to abolish our liberties.  For one thing, it is not necessary, even if the government claims to be at war.  Our judicial system is not perfect, but it works, and it’s a hell of a lot better than a dictatorship in which U.S. leaders can legally kill whomever they want or throw anyone they want in prison with no charges and without habeas corpus and without the right to a trial.  If that isn’t UN-American, I don’t know what is!  


In other words, we’ll soon learn if the Supreme Court Justices rule that it’s constitutional to abolish the Constitution.

Jacqueline Marcus taught ethics and political philosophy for twenty years at Cuesta College, San Luis Obispo, California.  Her book of poems, Close to the Shore, was published by Michigan State University Press.  She is the editor of www.ForPoetry.com