In 2012, the U.S. Congress passed the National Defense Authorization Act (NDAA) with relatively little attention from the media―despite the freedoms it obliterated. The NDAA was enacted to empower the U.S. military to fight the war on terror. But buried in this law are two provisions (Sections 1021 and 1022) that authorize the indefinite military detention, without charge or trial, of any person labeled a “belligerent”―including an American citizen. YOU can be targeted at any time by a U.S. President without any requirements for due process. These are exactly the issues I struggle with in my novel, 4o4 - A John Decker Thriller, about the surveillance state, recently listed as a Top Ten Amazon Bestseller in Technothrillers. For more, check out this story at The Huffington Post.
Dear Americans: This Law Makes It Possible To Arrest And Jail You Indefinitely Anytime
Terrorism may not be the worst threat to freedom that we face.
Steve MariottiSteve Mariotti is the founder of the Network for Teaching Entrepreneurship (NFTE) and an advocate for entrepreneurs worldwide.
In 2014 alone, terrorism killed nearly 30,000 men, women and children. As horrible as this is, terrorism may not be the worst threat to freedom that we face. The real threat is how quickly we Americans have given our government carte blanche to fight the War on Terror. This has already caused far greater damage to our civil liberties than the terrorists themselves could ever hope to achieve.
In 2012, the U.S. Congress passed the National Defense Authorization Act (NDAA) with relatively little attention from the media―despite the freedoms it obliterated. The NDAA was enacted to empower the U.S. military to fight the war on terror. But buried in this law are two provisions (Sections 1021 and 1022) that authorize the indefinite military detention, without charge or trial, of any person labeled a “belligerent”―including an American citizen.
These NDAA provisions (which have been re-approved by Congress and signed by President Obama every year since 2012) override habeas corpus―the essence of our justice system. Habeas corpus is the vital legal procedure that prevents the government from detaining you indefinitely without showing just cause. When you challenge your detention by filing a writ of habeas corpus, you must be promptly brought before a judge or into court, where lawful grounds must be shown for your detention or you must be released.
Under Section 1021, however, anyone who has committed a “belligerent act,” can be detained indefinitely, without charges or trial, as a “suspected terrorist.” This is a direct violation of the U.S. Constitution and our Bill or Rights. In The Federalist No. 84, Alexander Hamilton stressed the importance of the writ of habeas corpus to protect against “the favorite and most formidable instruments of tyranny.”
Only 13 senators voted against the NDAA in 2012, including Bernie Sanders (I-VT), Al Franken (D-Minn) and Rand Paul (I-KY).
According to Dan Johnson, the 23-year-old founder of People Against the NDAA (PANDA), our current presidential candidates do not seem concerned about it either. “Hillary Clinton has been entirely silent about it, while Donald Trump has come dangerously close to endorsing it, approving of military trials for American citizens at Guantanamo Bay just this month,” Johnson notes.
A protester questions the NDAA’s place in American law (source)
I asked Johnson to explain how the NDAA was passed and what implications it holds for a free America.
Steve Mariotti: How did you learn about this little-known law, the NDAA?
Dan Johnson: Five years ago, I came across a video, 61 senators betrayed you today. A curious political science major, I clicked to find Senator Lindsey Graham on the Senate floor vehemently promoting the idea that “enemy combatants” should not be entitled to due process.
Senator Graham was speaking in support of the 2012 National Defense Authorization Act (NDAA), which was signed into law by President Obama on New Year’s Eve in 2011. The NDAA authorizes the President to order the U.S. military to detain anyone in the United States without charges or a trial, until the war on terror ends. During that detention, the detainee is classified as an enemy spy, abelligerent. Even if you are an American citizen, you could be tried in military court, transferred to another country, or even executed... all without charges or a trial.
For these reasons, the NDAA is being opposed by groups that span the political spectrum―from the ACLU to Rush Limbaugh. It has been the subject of a lawsuit in Hedges v. Obama and is formally banned in several places.
Senator Lindsay Graham promoting the NDAA on the Senate floor.
SM: What is so scary about the NDAA?
DJ: The NDAA’s detention section harkens back to one of the worst civil rights violations in U.S. history: when the U.S. government detained over 120,000 Japanese-Americans, and a few thousand German- and Italian- Americans, without charge or trial. This abuse was allowed only because of Executive Order 9066, signed into law by President Roosevelt in post-Pearl Harbor 1942. The order authorized the Secretary of War and his commanders to re-designate parts of the United States as military battlefields.
Men, women and children were incarcerated in the U.S. due to their ethnic heritage during WWII (Source)
The NDAA also applies the laws of war on American soil―except under this law, everyone, whether an American citizen or not, is robbed of their rights. Under Section 1021, anyone who has committed a belligerent act, which even the government could not define when questioned in court, can be detained indefinitely, without charges or trial, as a “suspected terrorist.”
In essence, the 2012 NDAA brought the war on terror home. It is the authority used to kill American citizens abroad and justify the abuses at Guantanamo Bay. And now it applies on American soil.
SM: Who are the “covered persons” in the 2012 NDAA?
DJ: The 2012 NDAA’s detention provisions apply to anyone, anywhere. But who is most likely to have the NDAA used against them? It depends on how you define the word terrorist.
The Department of Homeland Security said that individuals or organizations “reverent of individual liberty” and “suspicious of centralized federal authority” pose a threat. The state of Georgia calls publishing “public records” terrorism. The FBI added the director of an anti-fracking film to the terror watchlist; and tells business owners to look for terrorists via “strange odors,” “ordering a specific hotel room,” and demanding “identity ‘privacy’ in dozens of their documents.
The government won’t define “terrorist” in order to keep their options flexible. So it means whatever they want it to mean, at any point. And under the 2012 NDAA, the term “terrorist” can be applied to whomever they want to apply it to, at any point.
SM: Does that really mean American citizens could be treated like POWs (prisoners of war) by the military?
DJ: If only we were so lucky. It’s actually worse than that.
The Geneva Conventions created in 1949 were a set of treaties that established international law standards for the humanitarian treatment of people involved in war. The Geneva Conventions split people on a battlefield into two categories:combatants (soldiers) and non-combatants (civilians). Under the Geneva Conventions, POWs are captured combatants protected by international law from torture, starvation and the denial of medical care.
After 9-11, the U.S. government wanted to get around the Geneva Convention’s ban on torture of combatants so it created a new category: unlawful enemy combatant, i.e. a “terrorist.” This is a person who took up arms on a battlefield but is not entitled to POW protections. As Department of Defense General Counsel William Haynes wrote in a letter to the Council on Foreign Relations, regarding Guantanamo Bay: “All of the detainees are unlawful combatants and thus do not as a matter of law receive the protections of the Third Geneva Convention.”
In 2009, Congress passed the second Military Commissions Act, which quietly replaced unlawful enemy combatant with unprivileged enemy belligerent. Both noncombatants and civilians could then be categorized as “enemy belligerents,” and denied their Geneva Conventions rights.
When the United States executed American citizen Anwar-al-Awlaki and his son in Yemen via drone strike on September 30, 2011, the rationale for the attack was that al-Awlaki had been labeled “an unprivileged enemy belligerent.” Under the 2012 NDAA, any American citizen can now be labeled the same.
A 2013 protest of the NDAA and detention of prisoners in Guantanamo, led by Amnesty International (source)
SM: Who is making the decision to implement this?
DJ: The 2012 NDAA grants one person in particular, the president of the United States, the authority to determine who is and is not considered a “suspected terrorist.” But he can designate that authority to anyone he would like, and we would not know because it would be considered a State Secret.
It was introduced in the Senate by Senator Carl Levin (D-MI) and a concurrent version was introduced in the House by Rep. Buck McKeon (R-CA). It was bipartisan legislation, passing 93-7 in the Senate and 283-136 in the House.
A previous champion of the fight against the NDAA was Rep. Justin Amash, but recently, no representative in either house has introduced legislation to curb the NDAA. It is the realization of one of my greatest fears: once Americans forget about this legislation, that’s when it will be used en masse.
SM: Are American civilians currently being detained under NDAA?
DJ: The scary thing is that we do not actually know. Why?
The government does not need a warrant to detain you.
The government does not have to produce any record of your detention.
The military, unlike the police, does not need to take record of your arrest.
Congress tried and failed to pass a provision that would have required the Secretary of Defense to submit a list of detainees under the NDAA to Congress every year.
In Hedges v. Obama, a case brought by journalists and activists who believed the NDAA’s detention provisions could be used to detain them, the government refused to confirm or deny that these provisions were in play right now. Judge Katherine Forrest agreed that the NDAA “does not pass muster under the First Amendment itself” and issued a permanent injunction preventing the enforcement of the NDAA.
In response, the Federal government immediately applied for an emergency stay to delay the case This very fact hints that the government is probably holding American civilians under the NDAA. We just don’t know where.
SM: When will this bill expire?
DJ: When will the war on terror end? That’s when the NDAA powers expire. America entered this war with the Authorization for Use of Military Force in 2001, which authorized “necessary and appropriate force” to go after Al-Qaeda and the Taliban, and to go to war in Afghanistan. It is also the same bill quoted by the 2012 NDAA.
So when the war on terror ends, that’s when these extraordinary military powers will end. And in all probability, the answer is never.
Two time Pulitzer Prize-winning investigative journalist, Barton Gellman, thinks the House Intelligence Committee's report on Ed Snowden is a crock of shit. And he is absolutely right. The surveillance state is doing everything in its power to silence whistleblowers who are trying to exercise their 1st and 4th Amendment rights. Our Constitution is being shredded daily. Our Founding Fathers are rolling over in their graves. Snowden should be pardoned by President Obama . . . but that neoliberal coward doesn't want to confront the oligarchs who control him. Before he was elected, the President was adamant about protecting whistleblowers. And yet, the Obama Administration has the worse record of ANY President when it comes to prosecuting whistleblowers. Snowden gave up his life for us so we could know how our own government is violating our Constitutional rights. What are you doing to help him get home? These are exactly the issues I struggle with in my novel, 4o4 - A John Decker Thriller, about the surveillance state, recently listed as a Top Ten Amazon Bestseller in Technothrillers. For more on this story, visit The Century Foundation, a progressive, nonpartisan think tank that seeks to foster opportunity, reduce inequality, and promote security at home and abroad.
The House Intelligence Committee’s Terrible, Horrible, Very Bad Snowden Report
BARTON GELLMAN Barton Gellman is a critically honored author, journalist, and blogger. His professional distinctions include two Pulitzer Prizes (individual and team), the George Polk Award, and Harvard's Goldsmith Prize for investigative reporting.
Late yesterday afternoon the House Permanent Select Committee on Intelligence released a three-page executive summary (four, if we count the splendid cover photo) of its two-year inquiry into Edward Snowden’s National Security Agency (NSA) disclosures. On first reading, I described it as an “aggressively dishonest” piece of work.
With a day or so to reflect on it, I believe it’s worse than that. The report is not only one-sided, not only incurious, not only contemptuous of fact.
It is trifling.
After twenty-five months of labor, the committee’s “comprehensive review” of an immensely complex subject weighs in at thirty-six pages. (None of which we may read, because it “must remain classified.”) I have graded college term papers that long. It is one more dispiriting commentary on the state of legislative oversight that the committee’s twenty-two members, Republican and Democratic, were unanimous in signing their names.
A reminder at the outset. I am one of four journalists (with Laura Poitras, Glenn Greenwald, and Ewen MacAskill) who received classified archives of NSA documents from Snowden. I am writing a book on the subject for Penguin Press. Feel free to consider, as you read this, that my stories in The Washington Post played a role in the disclosures that the committee is at pains to denounce.
The real burden of this report, released on the eve of the premiere of Oliver Stone’s Snowden film, is to offer a counter-narrative. An accompanying press release quotes committee members describing Snowden as “no hero,” “not a patriot,” and “a traitor.”
Since I’m on record claiming the report is dishonest, let’s skip straight to the fourth section. That’s the one that describes Snowden as “a serial exaggerator and fabricator,” with “a pattern of intentional lying.” Here is the evidence adduced for that finding, in its entirety.
“He claimed to have left Army basic training because of broken legs when in fact he washed out because of shin splints.”
This is verifiably false for anyone who, as the committee asserts it did, performs a “close review of Snowden’s official employment records.” Snowden’s Army paperwork, some of which I have examined, says he met the demanding standards of an 18X Special Forces recruit and mustered into the Army on June 3, 2004. The diagnosis that led to his discharge, on crutches, was bilateral tibial stress fractures.
“He claimed to have obtained a high school degree equivalent when in fact he never did.”
I do not know how the committee could get this one wrong in good faith. According to the official Maryland State Department of Education test report, which I have reviewed, Snowden sat for the high school equivalency test on May 4, 2004. He needed a score of 2250 to pass. He scored 3550. His Diploma No. 269403 was dated June 2, 2004, the same month he would have graduated had he returned to Arundel High School after losing his sophomore year to mononucleosis. In the interim, he took courses at Anne Arundel Community College.
“He claimed to have worked for the CIA as a ‘senior advisor,’ which was a gross exaggeration of his entry-level duties as a computer technician.”
Judge for yourself. Here are the three main roles Snowden played at the Central Intelligence Agency (CIA). (1) His entry level position, as a contractor, was system administrator (one among several) of the agency’s Washington metropolitan area network. (2) After that he was selected for and spent six months in training as a telecommunications information security officer, responsible for all classified technology in U.S. embassies overseas. The CIA deployed him to Geneva under diplomatic cover, complete with an alias identity and a badge describing him as a State Department attache. (3) In his third CIA job, the title on his Dell business card was “solutions consultant / cyber referent” for the intelligence community writ large—the company’s principal point of contact for cyber contracts and proposals. In that role, Snowden met regularly with the chiefs and deputy chiefs of the CIA’s technical branches to talk through their cutting edge computer needs.
“He also doctored his performance evaluations…”
Truly deceptive, this. I will tell the story in my book. Suffice to say that Snowden discovered and reported a security hole in the CIA’s human resources intranet page. With his supervisor’s permission, he made a benign demonstration of how a hostile actor could take control. He did not change the content of his performance evaluation. He changed the way it displayed on screen.
“… and obtained new positions at NSA by exaggerating his resume and stealing the answers to an employment test.”
The first clause is too vague to check. The second seems to be based on an unsubstantiated public statement from Booz Allen vice chairman Mike McConnell. I cannot purport to know for sure, but I do know this. The exam in question is routinely given to freshly enlisted Navy and Air Force recruits to determine their aptitude for entry level “computer network operations.” Snowden was a Microsoft Certified Systems Engineer with years of experience under his belt by then. I can’t explain why anyone thinks he would have to steal the answers.
“In May 2013, Snowden informed his supervisor that he would be out of the office to receive treatment for worsening epilepsy. In reality, he was on his way to Hong Kong with stolen secrets.”
True! When Snowden decided to leave the NSA with a cache of documents for public release, he gave a false cover story for his absence.
That’s it. That’s the committee’s whole case for Snowden as big fat liar. I won’t belabor the irony, but let’s note in passing that four of the six claims are egregiously false, and a fifth is hard to credit. We can only hope the classified report, which boasts 230 footnotes, has better evidence. If you know whether or not that’s the case, feel free to let me know.
The report’s executive summary also has plenty of misleading claims on other subjects—a remarkable number, really, for just three pages. Most have been the stuff of tub-thumping denunciations for years. Snowden “fled to Russia.” Well, no. He tried to fly to Ecuador, and the U.S. government trapped him in the Moscow transit lounge by revoking his passport. Or … Snowden could have relied on whistleblower protections. The Washington Post examined that proposition and found it largely incorrect. Or … Snowden stole 1.5 million classified documents. In fact, the nation’s most senior intelligence officers, no admirers of Snowden, have repeatedly said they can only surmise the number. Then-Defense Intelligence Agency (DIA) Director Michael T. Flynn, who is now advising Donald Trump, said “we assume that he took” every document he could reach. Then-NSA Director Keith Alexander said the agency could only count “what he touched, what he may have downloaded.”
Consider, next, the question of damage. I believe Snowden’s disclosures did a lot more good than harm, but I do not share the view of some of his fans that he did no damage at all. Even so, what are we to make of Subcommittee Chairman Lynn Westmoreland? In language largely echoed by the official report, Westmoreland said Snowden “did more damage to U.S. national security than any other individual in our nation’s history.” How about FBI agent Robert Hanssen, who helped the former Soviet Union roll up a whole U.S. espionage network and kill our agents? Or Julius Rosenberg, maybe, who only handed over plans for the atomic bomb? Or, as some would have it, George W. Bush, for the catastrophic choices he made in Iraq?
Another way to think on this is to ask, what counts as damage? Google, Microsoft, Yahoo, and others decided to encrypt the links between their data centers after my colleague Ashkan Soltani and I disclosed that the NSA wasbreaking into their private clouds. Now the NSA probably can’t do that any more, or not as easily. It has to use legal process and approach the companies through the front door. Is that damage? Is that disconnected, as the committee implies, from any legitimate question of “privacy or civil liberties”? Or are the new restrictions on surveillance a policy response to intelligence overreach?
Let me close with a dog that doesn’t bark at all. The committee states, in its press release, that this report is aimed at examining “post-Snowden reforms.” There is no discussion at all of reform when it comes to the powers, policies, and practices of surveillance. Only one reform is deemed worth mentioning, and here the committee judges the NSA harshly. There is “more work” to do, the committee says, to make sure its secrets are locked down tighter from now on.
Editor’s Note: Commentary has been updated as of September 18, 2016 changing “Or the Rosenbergs, maybe, who only handed over plans for the thermonuclear bomb?” to “Or Julius Rosenberg, maybe, who only handed over plans for the atomic bomb?”.
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