Should Pres. Obama be Detained for Violating the NDAA?

Originally published at The New American Magazine

If President Obama is supporting al-Qaeda, the Taliban, or associated forces, should he be subject to indefinite detention under the terms of the National Defense Authorization Act (NDAA)?

As The New American has chronicled since it was first proposed, the NDAA purportedly authorizes the president of the United States to deploy the armed forces to apprehend and indefinitely detain anyone suspected of providing support to terrorists. Section 1021 of the NDAA reads in relevant part:

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C.1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

A covered person under this section is any person as follows:

A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

And, finally:

Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

A plain reading of Section 1021 reveals, then, that anyone who is found to have “substantially supported” al-Qaeda or associated forces can be detained by the military until the end of the War on Terror. Now, the relevant question becomes: Has President Obama substantially supported al-Qaeda and if so, how? 

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House Passes Bill Eliminating Senate Approval of Presidential Appointments

By a vote of 261-116, the House of Representatives passed a bill rewriting Article II of the Constitution and divesting the Senate of the power to accept or reject the appointment of many presidential nominees.

Last year, the Senate passed the measure by a vote of 79-20, so it now goes to the desk of President Obama for his signature.

“Important positions will be filled faster, government agencies will be more capable of offering valuable services to their constituents, and the overall confirmation process will be more efficient,” said Senator Joseph Lieberman (I-Conn.), chairman of the Senate Homeland Security and Governmental Affairs Committee.

Dozens of key management positions in the Departments of Agriculture, Defense, Commerce, and Homeland Security (including the treasurer of the United States, the deputy administrator of the Federal Aviation Administration, the director of the Office for Domestic Preparedness, and the assistant administrator of FEMA) will now be filled by presidential edict, without the need of the “advice and consent” of the Senate, a phrase specifically removed from the process in the text of the bill.

Although the House vote occurred on Tuesday, the Senate voted to surrender its constitutional check on the executive over a year ago on June 29, 2011.

Despite a last-minute attempt by some House leaders to put the measure to a voice vote, thus allowing members to vote in favor of the legislation without being listed on the record, a roll call vote was taken, and the name of every congressman who voted to unconstitutionally neuter the legislative branch is listed.

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Ninth Circuit OKs Feds Use of Cellphones as Roving Bugs

The Ninth Circuit of Appeals ruled on July 20 that agents of the federal government may use a cellphone as a microphone and record the conversations overheard even when the phone itself is not being used otherwise.

This frightening bit of judicial lawmaking came as part of the decision in the case of the United States v. Oliva, 2012 WL 2948542 (9thCir. July 20, 2012).

For a bit of background, Oliva was convicted by a jury of drug-related crimes involving the distribution of methamphetmaine, cocaine, and marijuana. He appealed a decision by a district court denying his motion to suppress evidence obtained from a series of electronic surveillance orders authorizing interception of communications over cellular phones associated with him and his alleged co-conspirators.

Oliva argued that the orders authorizing these wiretaps were not standard intercept orders and did not meet the “specificity” requirement of the applicable federal law.

In its decision, the Ninth Circuit has upheld the lower court’s ruling, essentially allowing the federal government to convert cellphones into “roving bugs” so long as the government makes it clear that it will be using the target’s cellphone in that manner. Notice, the Ninth Circuit — a court created under the authority granted to Congress in Article III of the Constitution — did not throw out the matter as a violation of the defendant’s Fourth Amendment right against “unreasonable searches and seizures.” Instead, it simply informed  the government that it needs to get permission before doing so.

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Michigan State and Local Govts Propose NDAA Nullifying Bills

Citizens of Michigan continue to press for passage of a state law that would nullify the execution of the National Defense Authorization Act (NDAA) within the boundaries of the Great Lakes State. One such effort was begun by Michigan Representative Tom McMillin on June 14 when he introduced his bill to prevent the arrest and indefinite detention of citizens of his state under the authority of relevant provisions of the NDAA. According to the text of the legislation:

No agency of this state, no political subdivision of this state, no employee of an agency of this state or a political subdivision of this state acting in his or her official capacity, and no member of the Michigan national guard on official state duty shall aid an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to 50 USC 1541, as provided by the federal national defense authorization act for fiscal year 2012.

As reported by the Tenth Amendment Center (TAC):

Work to nullify NDAA detention provisions also continues at the local level in the Great Lakes State. On July 18, Oakland County Commissioner Jim Runestad introduced an NDAA Liberty Preservation Resolution for consideration, and on July 26, Allegan County Commissioner Bill Sage will introduce an identical resolution to that county commission.

County Commissioner Sage is quoted in the TAC article saying, “Citizens cannot stand by and permit this type of travesty against the U.S. Constitution that all local, state, and federal officials took an oath to protect.” In an effort to bolster the strength and scope of the grassroots campaign in his state, Sage and other likeminded Michiganders formed a “citizens’ action committee” called WOLF PAC. WOLF stands for “We the people Of Liberty and Freedom.”

According to the group’s website, WOLF PAC is dedicated to supporting “our Great Republic” through lobbying to:

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Drone Use Increases Worldwide; Trade Rep Says Only the Guilty Need Fear

“If you’re concerned about it, maybe there’s a reason we should be flying over you, right?” That’s the callous response of one drone trade group representative when asked his opinion of those who worry about the increasing use of the unmanned aerial vehicles and the corresponding decrease in privacy and civil liberties. The man who spoke those words is Douglas McDonald, the director of special operations for Unmanned Applications Institute International and president of a North Dakota chapter of an unmanned vehicle trade group. Another North Dakotan has a different take on the use of drones in the Flickertail State.

It’s been about a year since a North Dakota man was arrested after a local SWAT team tracked him down using a Predator drone it borrowed from the Department of Homeland Security. Although the story has not been widely reported, Rodney Brossart became one of the first (if not the first) American citizens arrested by local law enforcement with the use of a federally-owned drone surveillance vehicle after holding the police at bay for over 16 hours.

Brossart’s run-in with law enforcement began after six cows found their way onto his property (about 3,000 acres near Lakota, North Dakota) and he refused to turn them over to officers. In fact, according to several sources, Brossart and a few family members ran police off his farm at the point of a gun. Naturally, police weren’t pleased with Brossart’s brand of hospitality, so they returned with a warrant, a SWAT team, and a determination to apprehend Brossart and the cows.

A standoff ensued and the Grand Forks police SWAT team made a call to a local Air Force base where they knew a Predator drone was deployed by the DHS. About three years before the Brossart incident, the police department had signed an agreement with DHS for the use of the drone. No sooner did the call come in than the drone was airborne and Brossart’s precise location was pinpointed with laser-guided accuracy. The machine-gun toting SWAT officer rushed in, tased then arrested Brossart on various charges including terrorizing a sheriff, and the rest is history. Literally.

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VA Lawmaker to Introduce Domestic Drone Regulation Bill

What could bring together the American Civil Liberties Union (ACLU) and one of Virginia’s most conservative state representatives? The specter of drones filling the skies of the United States. In a joint statement released July 17 by Virginia Delegate Todd Gilbert (R-Shenandoah) and the Virginia Chapter of the ACLU, the seemingly disparate pair announced plans to work to fight the unregulated use of drones by law enforcement in the Old Dominion. He stated,

Both the ACLU and I believe, as do many Virginians across the political spectrum, that the use of drones by police and other government agencies should be strictly controlled by state laws that protect the privacy and civil rights of all Virginia residents. I will be introducing legislation in the 2013 General Assembly Session to i) prohibit the use of drones by law enforcement unless a warrant has been issued; ii) require that policies and procedures for the use of drones be adopted by legislative bodies in open meetings; iii) provide for public monitoring and accountability; and iv) mandate that pictures of individuals acquired by drones be destroyed unless they are part of an authorized investigation.

Claire Guthrie Gastañaga, executive director of the Virginia ACLU, echoed Delegate Gilbert’s remarks:

Delegate Gilbert is right to be concerned about the possibility that, without new laws, this new and increasingly inexpensive technology will be used in a manner that will violate the fundamental right to be free from unreasonable searches and will have a chilling effect on the First Amendment rights of Virginians to assemble peaceably and speak freely. We are proud to be working with Delegate Gilbert to build a coalition in favor of the legislation he will introduce — a coalition that will bring together diverse voices from across the Commonwealth.

Despite their cooperation on this issue, Gilbert and the Virginia ACLU have been foes in previous matters. For example, Delegate Gilbert recently sponsored a bill that would permit state-assisted private adoption agencies to reject prospective parents if the agency objected to the couple’s religion or sexual orientation. Gilbert described the measure as a “conscience clause,” while the ACLU countered that it was state-sponsored anti-homosexual discrimination. The bill is now the law in Virginia.

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Poll: 24% of Americans Believe in Right of Secession; but Is It Necessary?

Twenty-four percent (24%) of American adults believe states have the right to secede from the union and form an independent country, according to a recent survey conducted by polling professionals Rasmussen Reports.

In its telephone survey of 1,000 American adults conducted May 29-30, Rasmussen pollsters asked respondents the following question: “Do individual states have the right to leave the United States and form an independent country?”

The percentage of those answering yes to that question has increased by 10 percent in the two years since the same question wasasked in a previous poll.

In a statement released concurrent with the publication of the poll results, Scott Rasmussen (founder and president of Rasmussen Reports) said that the surprising responses indicated that Americans have “serious and growing concern about the federal government.”

That such a sentiment has grown so popular is to be expected given the decline in economic prosperity and the increase of the authoritarian surveillance state. Americans daily witness the usurpation of power by a never-surfeited federal government. State sovereignty is spoken of only in context of a now extinct notion of federalism, a relic from our republican past.

In a statement made to CNSNews.com, Rasmussen also alluded to the burgeoning frustration with the federal government as a reason for the results.

“We do see that people are concerned about the federal government in a variety of ways. Fifty-one percent believe that it’s a threat to individual liberties.”

“It may just be part of a growing frustration with other aspects of the federal government,” he continued. “But I think it’s important to keep it in perspective, growing to 24 percent still means that only one out of four Americans think that states have the right to secede, it’s not that they’re advocating for it,” he clarified.

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Obama Threatens Veto of NDAA 2013: Too Many Restrictions on His “Exclusive” Authority

Last week, several major news outlets reported on a Statement of Administration Policy (SAP) released by the White House regarding the Fiscal Year 2013 version of the National Defense Authorization Act (NDAA).

In the SAP, President Obama lays out 32 reasons why he is likely to veto the newest iteration of the NDAA.

The headlines announcing the President’s promise to reject the NDAA are identical to those published early last December, just a couple of weeks before the President took time off from his Hawaiian vacation to sign the measure into law. Somehow, President Obama was able to set aside his issues with the act and grant himself the power to indefinitely detain Americans without charge or trial.

Recently, we reported how those very provisions — those purporting to give the President the expansive and unconstitutional powers described above — remain in this year’s NDAA, despite the best efforts of a handful of constitutionally-minded representatives.

Last month, by a vote of 238-182, members of Congress rejected the amendment offered by Representatives Adam Smith (D-Wash.) and Justin Amash (R-Mich.) that would have repealed the indefinite detention provision passed overwhelmingly last year as part of the Fiscal Year 2012 NDAA.

Not only does the 2013 NDAA retain the indefinite detention provisions, but the section permitting prisoners to be transferred from civilian jurisdiction to the custody of the military persists, as well.

“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate on his amendment.

In his impassioned speech supporting his proposal, Representative Smith reminded his colleagues that the NDAA granted to the President “extraordinary” powers and divested the American people of key civil liberties, as well as divesting civilian courts of their constitutional jurisdiction.

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Supreme Court to “Decide” Whether NSA Domestic Wiretapping Is Beyond the Law

Last Monday, the Supreme Court of the United States granted a petition to hear a lawsuit calling for an end to another case challenging the constitutionality of the government’s warrantless wiretapping program.

This Orwellian (and unconstitutional) surveillance scheme was established in the wake of the attacks of September 11, 2001 and was explicitly authorized by an act of Congress passed in 2008.

Naturally, the Obama administration is pleased by the high court’s announcement, as it has followed the tack laid down by the George W. Bush White House that holds that the federal government’s monitoring and recording of the private communications of American citizens is not subject to legal scrutiny.

At issue in the case is the interpretation of the Federal Information Securities Act (FISA) Amendments Act, which has been challenged by the American Civil Liberties Union (ACLU) and other civil rights watchdog groups. The FISA Amendments Act purports to permit the intelligence and security agencies of the United States government to eavesdrop on the electronic communications routinely carried on among citizens of this Republic and those residing overseas.

It’s not the eavesdropping that’s the most egregious violation of the Constitution and the Bill of Rights (such activities are conducted by law enforcement all the time for legitimate purposes), but it’s the indefensible fact that the federally empowered snoops conduct this surveillance without a probable cause warrant so long as one of the parties being monitored is located outside the territory of the United States. The justification being that if an American is talking, texting, or e-mailing a foreigner then something might be said that would aid in the acquisition of “foreign intelligence information.”

This policy is such a shameful disregard for our long history of individual-based human and civil rights (including the freedom from unwarranted searches and seizures) that it shocks the conscience even when the source is considered.

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After NDAA Amendment, Indefinite Detention Still the Law

Originally published at The New American

In a shameful display of disregard for the Constitution and for liberty, on Friday, the House of Representatives voted to perpetuate the president’s power to indefinitely detain American citizens.

By a vote of 238-182, members of Congress rejected the amendment offered by Representatives Adam Smith (D-Washington) and Justin Amash (R-Michigan) (left and right, respectively in photo montage at left) that would have repealed the indefinite detention provision passed overwhelmingly last year as part of the National Defense Authorization Act (NDAA) of 2012.

The Fiscal Year 2013 NDAA retains the indefinite detention provisions, as well as the section permitting prisoners to be transferred from civilian jurisdiction to the custody of the military.

“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Representative Amash said during House debate.

Debate on the Smith-Amash Amendment, as well as about 140 others began in the early, pre-dawn hours Friday morning.

In his impassioned speech supporting his amendment, Representative Smith reminded his colleagues that the NDAA granted to the president “extraordinary” powers and divested the American people of key civil liberties, as well as divesting civilian courts of their constitutional jurisdiction.

Smith pointed out that there was no need to transfer suspects into military custody as “hundreds” of terrorists have been tried in federal courts since the attacks of September 11, 2001.

Congressmen — Republicans and Democrats — were not persuaded and they voted against Smith-Amash.

Another amendment offered by Representatives Louie Gohmert (R-Texas), Jeff Landry (R-Louisiana), and Scott Rigell (R-Virginia) passed by a vote of 243-173. The Gohmert Amendment (House Amendment 1126) states that the NDAA will not “deny the writ of habeas corpus or deny any Constitutional rights for persons detained in the United States under the AUMF who are entitled to such rights.”

Again, this amendment is yet another indefensible use of vague language that would make it vulnerable to challenge in any court in any state in the Union, but somehow adds to its appeal among the Republicans in Congress.

Smith and those supporting his amendment claimed that Gohmert’s Amendment was unnecessary as it does nothing of any value other than restate what is already settled law: viz., that Americans have the right to a ask for a writ of habeas corpus.

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