Thread: Indefinite Detention: the Courts, the Congress & the Chicago PD

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Recently, there has been a victory and a defeat regarding the indefinite detention provision of the Fiscal Year (FY)2012 National Defense Authorization Act (NDAA). Pulitzer Prize winning journalist Chris Hedges meets with and writes stories about terrorists and believes the indefinite detention provision of NDAA could allow him to be detained. Hedges filed a lawsuit against President Obama and Defense Secretary Leon Panetta claiming the provision, as applied, violates the 1st and 5th Amendments. The Judge asked the federal attorneys a crucial question, "are you telling me that no US citizen can be detained under 1021 (of the NDAA)?" A specific denial would have ended Hedges' case, the Federal attorneys failed to answer directly.

DownsizeDC – an advocacy group seeking to “to foster human progress by reducing State coercion” – filed the only amicus brief in the case and reports, “The Judge agreed with two of our main arguments. We said the new law is...

Illegally vague. The Judge said there has to be a precise definition of who is subject to the law, and this law fails.
Unfair, because it subjects people to detention even when they had no intent to cause harm or knowledge that they were risking such detention.”


U.S. District Judge Katherine B. Forrest not only gave Hedges standing to challenge the law, she also issued an injunction to halt the legalized kidnappings!

The day after Judge Forrest issued her decision, Representatives Justin Amash (R–MI) and Adam Smith (D–WA) proposed an amendment to the FY2013 NDAA, that would strike section 1022 of the FY2012 NDAA and amend Section 1021 of the same Act to eliminate indefinite military detention for anyone detained in the jurisdiction of the United States of America.

The New York Times reports, “the left-right coalition fizzled in the face of charges that the two lawmakers were coddling terrorists.”

Even after the indefinite detention provision was ruled to be illegal, the Congress failed to repeal the section of law. The Chicago Police Department took their defiance of the Court one step farther. TruthOut Assistant Editor Yana Kunichoff reports, “A pre-emptive raid by the Chicago Police Department (CPD) on the home of two Occupy Chicago activists may have happened without a search warrant, said the National Lawyers Guild (NLG), and led to the disappearance of nine activists into police custody without charge for almost 24 hours.”

Zoe Sigman, an Occupy Chicago activist whose home was raided, said, "I'd like to stress that we have done nothing wrong. We have been planning to protest NATO and there is nothing illegal about expressing our feelings about a war machine. Now we're being treated as mere criminals.” The CPD has released claims that the raid recovered Molotov cocktails, though activists said that the equipment is merely for home brewing of beer.
http://www.freedomsphoenix.com/News/....htm?From=News


One protester said, “it's important to continue protesting, because this tactic was obviously an attempt to intimidate.” I urge you to continue speaking out against tyranny, and I intend to do the same.

Free Patriot Press: Indefinite Detention: the Courts, the Congress & the Chicago PD

Tuesday, 22 May 2012 10:45
Is The New American "Absurd" to Expose the NDAA? One Writer Says Yes
Written by Joe Wolverton, II



Is The New American "Absurd" to Expose the NDAA? One Writer Says Yes

Calling an article by this author “hysteria,” Andrew C. McCarthy (right in Constitution montage, opposite Madison) described the efforts by “Libertarian extremists” to defend the Constitution and the Bill of Rights as a fight for “more rights for mass murderers.”

In his piece published by PJ Media, McCarthy, a former federal prosecutor and regular contributor to National Review, excoriates The New American and other constitutionalists for our exposé of the attacks on liberty posed by the extraordinary power granted the President of the United States by the NDAA.

Once again resorting to clichéd criticisms (one would expect a more robust economy of language from a “New York Times bestselling author”), McCarthy claims that the NDAA “did not increase the president’s powers. It merely codified existing constitutional jurisprudence.”

Although this is a familiar trope of the Republican Establishment and its media shills, the NDAA most certainly expands the scope of presidential authority, as well as severing the right of habeas corpus from its traditional and constitutional moorings and attaching it instead to the Authorization for the Use of Military Force (AUMF). While it is true that the AUMF is the ostensible law of the land, the danger is that by altering the standard against which civil liberties are measured, there is a gradual degradation of those liberties.

Readers will recall the words of James Madison, who warned:

Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.

As for the NDAA’s creation ex nihilo of a presidential power to deploy the military to arrest Americans suspected of posing a military threat to the homeland, McCarthy argues that, “the NDAA does not authorize the military to arrest American citizens inside the United States. Instead, it codifies the pre-existing constitutional authority to hold enemy combatants in military detention. Domestic apprehensions are still done by the FBI and other law-enforcement agencies, not the armed forces.”

Again, one would expect an attorney trained in the language of the law, as was Andrew McCarthy, to be a bit more capable of appreciating nuances in the text of the statutes, including the NDAA.

To aid his understanding, we suggest that McCarthy read the words of Section 1021 of the NDAA more closely. This provision says that the military is not required to detain American citizens. That is hardly the same as saying that the military is forbidden from doing so.

Congress is crawling with attorneys who were schooled in the importance of specificity of language. They know that vagary in language is contrary to good law and that innumerable statutes are struck down by courts all over the country on that very account.

The point is: if these men and women in Congress, so many of whom are trained in the law, meant expressly to forbid the military from arresting and detaining American citizens, then they could have done so. The irrefutable fact is that they chose not to. Rather, they chose to leave that option open.

More importantly, the NDAA is loaded with key terms that are so ill defined that they are ripe for the wresting and within the penumbras of these cleverly crafted provisions may be found the tools of tyranny. Wrenches that could torque anyone branded as an enemy combatant into a predetermined “terrorist” slot.

In fact, Section 1021 of the NDAA is so poorly drafted that District Court Judge Katherine Forrest recently held:

Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity. It also lacks the critical component of requiring that one found to be in violation of its provisions must have acted with some amount of scienter — i.e., that an alleged violator’s conduct must have been, in some fashion, “knowing.” Section 1021 tries to do too much with too little — it lacks the minimal requirements of definition and scienter that could easily have been added, or could be added, to allow it to pass Constitutional muster.

She added that “Section 1021 is not merely an ‘affirmation’ of the AUMF [Authorization for the Use of Military Force].”

Not that a district court judge’s opinion is the final arbiter of what is or is not constitutional, nevertheless her ruling is indicative of the lack of legal skill demonstrated by those who wrote the NDAA.

In fairness, there are two ways to view this statutory carelessness: either the authors purposefully left the language vague or they are inept. Regardless of which option is more accurate, the American people deserve better and have every right, and indeed obligation, to search for and support legislators who are willing to be true to their oath of office and defend the Constitution.

The laudable efforts of two of these conscientious legislators are particularly pilloried by McCarthy in his article published by PJ Media.

Although voted down by their peers on both sides of the aisle, Representatives Adam Smith (D-Wash.) and Justin Amash (R-Mich.) tried in vain last week to prevent the NDAA’s executive tyranny from being perpetuated.

The rejected Smith-Amash amendment would have explicitly repealed the indefinite detention provisions of the NDAA, as well as one that would allow the transfer of prisoners from civilian to military custody.

In his review of the Smitih-Amash amendment, McCarthy, like so many other self-described “conservatives,” reveals himself to be nothing more than a priest whose duty it seems to be to officiate at the sacrifice our Republic’s freedom on the altar of safety.

McCarthy and the rest of his brethren attempt to frighten Americans into willingly bowing before this blood-soaked altar by invoking the various names by which the post 9/11 demon of terror is known: “terrorist,” “al-Qaeda,” “enemies,” “mass murderers,” “militants,” etc.

Read McCarthy’s account of the purpose and effect of the Smith-Amash amendment and take note of the number of times this specter is summoned:

Under the Smith-Amash amendment, if al Qaeda were to dispatch the second coming of Mohamed Atta & Co. to execute another 9/11-style atrocity in the United States, but this time the FBI managed to apprehend them, they would be given the full rights of American civilian defendants. They could not be detained under the laws of war, they could not be held at Guantanamo Bay for trial by military commission. Instead, they would be treated like garden variety crooks: given Miranda warnings, quickly assigned counsel, held in a civilian prison, eligible for prompt bail hearings, entitled to the full breadth of discovery mandated by civilian due process, and given a full-blown, Grade-A civilian trial in a civilian federal court….

For whom is due process a right? Is it a right only for McCarthy’s so-called “garden variety crooks” or is it applicable to all those accused of crimes, no matter how reprehensible?

Is the insistence by constitutionalists (on the Left and the Right) that those charged with committing acts of terrorism be afforded the full panoply of procedural protections mere “demagoguery” as McCarthy claims?

Do they simply want to “delegitimize military responses to international terrorism and endow terrorists — the vast majority of whom are non-Americans — with greater protection”?

Our response is an emphatic No! Due process, habeas corpus, the right to a trial by jury, and freedom from the fear of indefinite detention based on nothing more than presidential suspicion, and indeed the rest of the American catalog of protections from despotic persecution are timeless principles of liberty and are rightly retained not by American citizens only, but by the entire human family as children of the God who is the Author of those rights, regardless of the nationality of the suspect or the despicable deeds of which that suspect is accused.

Finally, consider this declaration: “It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”

That was the prescient observation made by James Madison in a letter to Thomas Jefferson written in 1798.

So, when it comes to the future of our Republic and the value of liberty, readers are free to weigh in the balance the words of James Madison against those of Andrew McCarthy and determine which is found wanting.


Is The New American "Absurd" to Expose the NDAA? One Writer Says Yes