We'll see if this is unfalsifiable, but yet falls victim to the virtual, curious media blackout on the ongoing battle over the National Defense Authorization Act. I write this bare bones version because I have the flu, but think I got the main points in here. If I'm wrong, please prove it. To those who've followed this closely, this may explain some of the puzzling rhetoric, court proceedings & rampant chicanery about what the NDAA actually does.
If you cannot debunk my analysis below, please pass it on to media, legal experts, Chris Hedges, Noam Chomsky & other plaintiffs suing to block the NDAA, which is much more horrifying than anyone has, so far, grasped. No one has debunked my analysis yet.
Much of the controversy and confusion surrounding Congress' 12/31/11passage of the NDAA bill has focused on sub-section 1021b, empowering the military to "indefinitely detain" people without charges or trial. A bi-partisan group of Senators failed to strip this "indefinite detention" power from the NDAA. A high-profile group of journalists (Pulitzer-Prize winner, Chris Hedges), academics (Noam Chomsky), whistleblowers (Daniel Elsberg) & activists are suing the US (Pres. Obama, Sec. of Defense Panetta, etc.) in a case, which some have characterized as the biggest constitutional showdown between the president and judiciary, the 1st Amendment, since the 1970's Pentagon Papers case. On Sept. 12, 2012, US Judge Katherine Forrest ruled in favor of the plaintiffs, stating that NDAA 1021b was unconstitutional vague, and violated the plaintiff's constitutional rights protected by the 1st Amendment (free speech, press, association), and 5th Amendment (e.g. due process, fair trial, etc.). Unexpectedly, Pentagon lawyers filed an "emergency freeze" on Judge Forrest's injunction, which Obama officials said would cause "irreparable harm" to US national security. These reactions caused plaintiffs to speculate that the US had already used the NDAA to "indefinitely detain" Americans without trial in military prisons.
I will prove the truth about the NDAA would "shock the conscience" of most Americans, and Congress, the media, the plaintiffs & deciding US judges, have either been deceived into- or complicit in- concealing the fact that the NDAA essentially codifies the quasi-dictatorial "war on terror" powers, secretly claimed by Bush & Obama administrations to erect what NSA whistleblower Thomas Drake, called an Orwellian "turn-key totalitarian" state, and retroactively "legalizes" Bush/Obama secret use of the massive military & intelligence apparatus domestically, unrestrained by the Bill of Rights, Congressional or Judicial checks on virtually unlimited Executive power (i.e. tyrannical power Founding Fathers never dreamed possible).
Unless my analysis can be debunked, the NDAA is not merely about indefinitely detaining citizens without trial (i.e. torture), but rather, deceptively codifying a new, secret authoritarian " Constitutional order" invented by Bush & Pentagon lawyers on 10/23/2001 past Congress, the judiciary, media & the public, which few would support. Indeed, the critical "secret legal memo" empowers the US President (& possibly military commanders) to suspend the 1st Amendment right to free speech & free press, indefinitely detain, murder, search/seize/destroy property (& communications) of even innocent US citizens, order military/CIA non-investigatory operations targeting citizens, suspension of the Bill of Rights (not excluding Congress members & US judges), until the end of hostilities (i.e. never).
To prove that I'm not exaggerating, I will cite below some shocking passages of this declassified "secret legal memo" below, and challenge the reader to name a single totalitarian (Nazi or communist) practice, which has not been secretly "legal" since Oct. '01. To be sure, I'm not talking about the non-secret interpretations of the Patriot Act, like the US Supreme Court decision, Holder v. Humanitarian Law Project, which perversely allows US authorities to charge people/entities directly advocating nonviolence to be imprisoned for providing material support to terrorists (See, "How Easy Is It for Peaceful People to Violate the Patriot Act?")
PROOF THE BUSH ADMINISTRATION SECRETLY CLAIMED QUASI-DICTATORIAL POWERS
The irrefutable fact that the Bush administration had been secretly claiming these quasi-dictatorial "war on terror" powers mentioned above from 10/23/2001 until the last days of their reign was revealed in the afternoon of 3/2/2009, when Obama's DOJ declassified this secret legal memo, "Authority for Use of Military Force To Combat Terrorist Activities Within the United States."
The Bush administration & Pentagon lawyers (e.g. John Yoo) argued that even if critics did not accept their interpretation of the US constitution "vesting" the US president with these inherent "emergency" powers, Congress granted the US president these virtually (or actually) unlimited powers by passing the 2001 Authorization of the Use of Militry Force (AUMF) bill.
See my blog, "
The Day Defending the US Constitution Became A Terrorist Crime"
(also see, "NDAA Frankenstein"), for some horrifying quotes illustrating the Bush (& then Obama) legal reasoning of what the "war on terror" justifies, like:
"First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully"
"[T]he protections of the Bill of Rights are tempered by the circumstances of war."
"Fourth Amendment does not apply to domestic military operations"
"[L]egal and constitutional rules regulating law enforcement activity are not applicable"
"[E]fforts to fight terrorism may require not only the usual wartime regulations of domestic affairs, but also military actions that have normally occurred abroad."
"Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence"
"[T]hat aiders and abettors of the public enemy were themselves enemies, and hence that their property might lawfully be confiscated."
"[C]ertain basic constitutional rights do not apply to the enemy, and that even United States citizenship may not negate the possibility that one
may have the legal status of an enemy."
"Although these decisions arise under the Fifth Amendment rather than the Fourth, we think that they illuminate the Government's ability to "search" and "seize" even innocent United States persons and their property for reasons of overriding military necessity." [NOTE: USE OF DEADLY FORCE IS ALSO A 4TH AMENDMENT SEIZURE, INDICATING EVEN INNOCENT US CITIZENS CAN BE MURDERED ON US SOIL IF PRES./MILITARY DEEMS IT NECESSARY]
The following quote reveals several shocking powers also justified elsewhere in the 2001 USDOJ OLC legal memo to: 1) military commanders (i.e. not just US president) operating inside the US "battlefield," 2) may order military indefinite detention of citizens without charges/trial, for 3) giving aid/information to the enemy (note: there's no legal requirement to prove citizen intended to aid or provide information to "enemy" indeed his motive may be the aid/inform the US/public, 4) See examples, of Wikileaks, US whistleblowers, journalists, academics, bloggers, or anyone in Internet age.
"[i]f a commanding officer finds within his lines a person, whether citizen or alien, giving aid or information to the enemy, he can arrest and detain him so long as may be necessary for the security or success of his army. He can do this under the same necessity which will justify him, when an emergency requires it, in seizing or destroying the private property' of a citizen." Id. at 7. In terrorist wars...there are of course no battle lines...We think...the same principle applies, and that a military commander operating in such a theater has the same emergency powers of arrest and detention."
You get the picture. In a 3/3/2009 Harpers' article, constitutional scholar, Scott Horton, said about the declassified secret legal memo:
"We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship."
But it seems the Obama & Pentagon lawyers opted to secretly retain these dictatorial powers, which go way beyond "merely" spying. The Pentagon & Bush lawyers could've simply said the US president has dictatorial powers until the "war on terror" is over, but they waste many pages twisting logic & precedent to make it all look "legal." I'm pretty sure I'm the only expert to warn of these specific power uses before this memo was declassified back when I was a colleague of Pres. Bush's UC-Berkeley torture & anti-terror architects, but let's get back to my argument today.
PROOF THE PENTAGON & OBAMA ADMINISTRATION BELIEVES THE NDAA CODIFIES PRES. BUSH'S SECRET LEGAL JUSTIFICATIONS OF QUASI-DICATORIAL POWERS (INCLUDING MILITARY "INDEFINITE DETENTION" OF EVEN INNOCENT CITIZENS)
NDAA Section 1021 is framed as a "reaffirmation" of AUMF
* Obama officials & lawyers have said the NDAA merely "codifies" pre-existing law and does nothing new.
"As we explained, the district court's [Judge Forrest] injunctive order causes harm in several ways. First, the court rejects the Executive Branch's long-standing interpretation of the AUMF – with respect to the concepts of "substantial support" and "associated forces" – that has been endorsed by two Presidents..."
* The critical NDAA Sections 1021d & 1021e have been either ignored or misrepresented to convince Congress members, media & citizens that the NDAA "indefinite detention" provision does not apply to US citizens &/or the NDAA doesn't change any existing laws or authority, which is technically true, but the most horrifying aspects of the law when considering that "existing" law/authority is identical to the quasi-dictatorial powers invented in Pres. Bush's 10/23/01 secret legal memo.
* Sub-section 1021(d), also affirms that nothing in the Act "is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force".
* Sub-section(e), states "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
"Assistant U.S. Attorney Benjamin Torrance argued in court that the government already has the authority to strip citizens of their constitutional rights."
PROOF CONGRESS DID NOT BELIEVE THE NDAA CODIFIED SECRET LEGAL JUSTIFICATION OF QUASI-DICTATORIAL POWERS
Because I think there's a plethora of evidence suggesting that even Congressional critics of the NDAA were pretty clueless about what they were passing (or knowingly deceiving the public on behalf of Pentagon &/or Obama), and because I don't want to distract readers from my BIG argument here, I'll refer you to two of my previous articles below proving this point:
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PROOF US JUDGE FORREST CORRECTLY UNDERSTOOD THAT THE NDAA WAS EX POST FACTO "FIX" TO RATIFY PAST ACTIONS/INTERPRETATIONS OF AUMF THAT CONGRESS NEVER INTENDED
In US Judge Katherine Forrest's trenchant 9/12/12 rejection of the Obama administration's arguments, she said the following:
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"Section 1021 appears to be a legislative attempt at an ex post facto "fix": to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF. That attempt at a "fix" is obscured by language in the new statute (e.g., "reaffirmation") that makes it appear as if this broader detention authority had always been part of the original grant. It had not."
& Judge Forrest says (pp. 42-43):
"In the face of cases ruling that the law of war does not provide for the expansive detention authority the Government envisions, the inclusion of the "law of war" in § 1021 appears to have been intended as a legislative gap-filler, a 'fix."
"It is clear that if she intends to permanently outlaw the legal authority to indefinitely detain US citizens, she [Judge Forrest] must go farther than merely banning the specific NDAA 1021 provision. In reality, she must write an opinion that unambiguously clarifies that such practices are unconstitutional and cannot be deemed "legal" by any secret interpretations of any legislation or newly invented inherent powers based in the US constitution."
EVIDENCE SUGGESTING THE US APPEALS COURT IS BEING DECEIVED (OR DISINGENUOUS) BY MISREPRESENTATION OF NDAA
A 10/2/12 Politico article reported, "A three-judge motions panel of the U.S. Court of Appeals for the 2nd Circuit issued the order Tuesday afternoon, indicating they saw flaws with the scope and rationale for U.S. District Court Judge Katherine Forrest's original order blocking the disputed provision of the National Defense Authorization Act of 2011.
'We conclude that the public interest weighs in favor of granting the government's motion for a stay,' Appeals Court Judges Denny Chin, Raymond Lohier and Christopher Droney wrote in a three-page order that also expedited the appeal.
The judges continue:
First, in its memorandum of law in support of its motion, the government clarifies unequivocally that, 'based on their stated activities,' plaintiffs, 'journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the U.S. military.'
Second, on its face, the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States. See NDAA § 1021(e) ('Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.').
Third, the language of the district court's injunction appears to go beyond NDAA § 1021 itself and to limit the government's authority under the Authorization for Use of Military Force...
WHY MY ANALYSIS WILL BOLSTER PLAINTIFFS' CASE VS. NDAA IN US APPEALS &/OR SUPREME COURT & JUSTIFIES "LEGAL STANDING" FOR MANY TO CHALLENGE SECRET INTERPRETATIONS OF AUMF
* My analysis demonstrates that the plaintiffs have much more to fear than capture or "indefinite detention," which invalidates the Obama lawyers' (belated & carefully parsed) assurances that they have not been and won't be "indefinitely detained," and therefore have no legal standing to challenge the constitutionality of the NDAA (or by implication of the AUMF).
* My analysis illuminates the deceptive logic of NDAA sub-section 1021e, cited by the three US Appelate judges (& Obama lawyers & Congress members) above, and reveals that according to the secret interpretations of the NDAA/AUMF, US citizens can be stripped of all their rights at the whim of any US president and targeted with covert warfare (or indefinitely detained or murdered) as an "enemy of the state" for exercising their 1st Amendment right to free speech, free press, &/or free assembly.
* My analysis provides logic & evidence that can be used by other US citizens (EXCEPT THOSE ALREADY STRIPPED OF CONSTITUTIONAL RIGHTS- E.G. TO LAWYER-, WHETHER IN SECRET DETENTION OR SIMPLY ON TERRORIST WATCHLIST, OR OTHER BLACKLISTS OR SO-CALLED WATCHLISTS) to get legal standing to challenge the constitutionality of the NDAA & AUMF. Perversely, I suspect the only ones who can legally challenge the NDAA & AUMF's constitutionality are those who have not been abused, tortured, discredited, blacklisted, detained- in any facility- by them, as has happened in our previous darkest chapters.
* According to the UN, "indefinite detention" without charges or trial, is itself torture. Thus, the NDAA attempts to codify torture of US citizens without even a trial.
* If codified (or secretly if not judicially banned), US military authorities could coerce friends, family, doctors, 3rd parties to abuse, persecute, blacklist, excommunicate, discredit, humiliate, fire targeted US citizens by telling the 3rd parties that their noncompliance with require the "indefinite detention" of the targeted citizen/critic. This is one way governments socially-engineer blacklisting, discrediting, excommunication of dissidents, including Americans (e.g. "if you don't abort communication with & financial/emotional support of your sister/daughter, we'll be forced to secretly indefinitely detain her without trial/charges forever & she'll never see the light of day, and it'll all be classified so nobody can whisper a word about this anyway). Therefore, these (or other) plaintiffs can challenge the constitutionality of "indefinite detention" on these grounds as well.
CONCLUSION
* The NDAA 2012 is an attempt to codify the quasi-dictatorial powers first dreamed up by Pres. Bush's lawyers on 10/23/2001 & claimed ever since, behind the backs of Congress, the US Judicial Branch, the media & US citizens, ushering in a qualitatively new, terrifying, secret authoritarian "Constitutional order," that justifies targeting US citizens, Congress, even US judges with military forms of warfare & any force deemed necessary to the successfully wage the never-ending "war on terror."
* US whistleblowers have indicated the existence of an existent US Orwellian "totalitarian" state available for use by any president.
* On the morning of 3/2/09 I faxed Senators Feinstein (Intelligence Chair) & Leahy (Judiciary Chair) my analysis indicating that the Bush had been secretly claiming quasi-dictatorial powers to use the military/CIA to target innocent critics as if they were "enemies of the state" or terrorist. Coincidentally, or not, hours later the secret legal memo discussed above was declassified. It's irrelevant for me to prove that, but you can ask the Senators to deny it. I was definitely the first expert to "connect the dots" before, and believe I am the first to "connect the dots" between the NDAA, AUMF & Pres. Bush's 10/23/2001 "secret legal memo," and the related court case & politics surrounding it & Congress' passage of the NDAA. Maybe I'm a lucky guesser.
NOTES: