OBAMA WINS BACK THE RIGHT TO INDEFINITELY DETAIN UNDER NDAA

The Obama administration has won the latest battle in their fight to indefinitely detain US citizens and foreigners suspected of being affiliated with terrorists under the National Defense Authorization Act of 2012.
Congress granted the president the authority to arrest and hold individuals accused of terrorism without due process under the NDAA, but Mr. Obama said in an accompanying signing statement that he will not abuse these privileges to keep American citizens imprisoned indefinitely. These assurances, however, were not enough to keep a group of journalists and human rights activists from filing a federal lawsuit last year, which contested the constitutionality of Section 1021, the particular provision that provides for such broad power.
A federal judge sided with the plaintiffs originally by granting an injunction against Section 1021, prompting the Obama administration to request an appeal last year. On Wednesday this week, an appeals court in New York ruled in favor of the government and once again allowed the White House to legally indefinitely detain persons that fit in the category of enemy combatants or merely provide them with support.
Now with this week’s appellate decision, plaintiffs intend on taking their case to the Supreme Court. Should the high court agree to hear their argument, the top justices in the US may finally weigh in on the controversial counterterrorism law.
The so-called “indefinite detention” provision of last year’s National Defense Authorization Act has been at the center of debate since before President Barack Obama autographed the bill in December 2011, but a federal lawsuit filed by Pulitzer Prize-winning war correspondent Chris Hedges and others only two weeks after it went into effect remains as relevant as ever in light of a decision delivered Wednesday by the US Court of Appeals for the Second Circuit.

Chris Hedges, former New York Times reporter and current Truthdig columnist (Reuters / Shannon Stapleton)

The plaintiffs in case had previously been successful in convincing a federal district judge to keep Section 1021 from being put on the books, but the latest ruling negates an earlier injunction and once again reestablished the government’s right to indefinitely detain people under the NDAA.
Tangerine Bolen, a co-plaintiff in the case alongside Hedges, told RT, “Losing one battle is not losing the war. This war is an assault on truth itself. It flaunts reason, sanity and basic decency. We will not stand down in the face of these egregious assaults on our rights and liberties.”
In a statement published to TruthDig, Hedges called the ruling “distressing” and said, “It means there is no recourse now either within the Executive, Legislative or Judicial branches of government to halt the steady assault on our civil liberties and most basic Constitutional rights.”
Section 1021 of the NDAA reads in part that the president of the US can indefinitely imprison any person who was part of or substantially supported al-Qaeda, the Taliban or associated forces engaged in hostilities against the US or its coalition partners, as well as anyone who commits a "belligerent act" against the US under the law of war, "without trial, until the end of the hostilities.” The power to do as much was allegedly granted to the commander-in-chief after the Authorization to Use Military Force was signed into law shortly after the September 11, 2001 terrorist attacks, but a team of plaintiffs have argued that Section 1021 provides the White House with broad, sweeping powers that put the First Amendment-guaranteed rights to free speech and assembly at risk while also opening the door for the unlawful prosecution of anyone who can be linked to an enemy of the state.
Only two weeks after the 2012 NDAA was signed into law, Hedges filed a lawsuit against the Obama administration challenging the constitutional validity of Section 1021.
“I have had dinner more times than I can count with people whom this country brands as terrorists … but that does not make me one,” he said at the time.
Naomi Wolf, an American author, told the Guardian last year that she has skipped meetings with individuals and dropped stories that she believed are newsworthy “for no other reason than to avoid potential repercussions under the bill.”

Author and political consultant Naomi Wolf (Reuters / Mike Segar)

Hedges first filed suit on Jan 13, 2012, and was eventually joined by a number of activists, reporters and human rights workers from both the US and abroad, including Pentagon Papers leaker Daniel Ellsberg, journalist Alexa O’Brien, Revolution Truth founder Bolen and Icelandic PM Birgitta Jónsdóttir. District Court Judge Katherine Forrest granted the plaintiffs a preliminary injunction against Section 1021 that May, only to make that decision permanent four months later. The Obama administration filed a stay against that injunction just days after, though, and the appeals court ruled this week that Judge Forrest’s decision must be vacated.

Carl Mayer, an attorney for the plaintiffs, previously told RT that he expected the White House to lose the appeal. “The Obama administration has now lost three times. They lost the temporary injunction, they lost the motion for reconsideration and they lost the hearing for permanent injunction. I say three strikes and you’re out,” he said.

But with the court’s 3-0 ruling this week, a federal panel concluded that the plaintiffs involved in the suit do not have standing to challenge Section 1021. In doing so, however, they offered what is the most official interpretation yet of a law that has continuously attracted criticism for nearly two years now.
After years of debate, the appeals court said once and for all that the NDAA does not apply to American citizens, and rehashed the Obama administration’s insistence that it simply reaffirmed rights afforded to the government through the AUMF.
“Section 1021(e) provides that Section 1021 just does not speak — one way or the other — to the government’s authority to detain citizens, lawful resident aliens or any other persons captured or arrested in the United States,” the court ruled.
“We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 means this: With respect to individuals who are not citizens, are not lawful resident aliens and are not captured or arrested within the United States, the President’s AUMF authority includes the authority to detain those responsible for 9/11 as well as those who were 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 — a detention authority that Section 1021 concludes was granted by the original AUMF.”
“But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all,” it concluded.
The AUMF, however, is still open to interpretation. An earlier legal ruling concluded that the AUMF “clearly and unmistakable” authorized detaining those who were “part of or supporting forces hostile to the US.” Then a memo issued in March 2009 just weeks’ into Pres. Obama’s first term even added that the government has the authority “to detain persons who were part of or substantially supported” anyone engaged in hostilities against US or its partners.
“In any event, the March 2009 Memo took the view that ‘the AUMF is not limited to persons captured on the battlefields of Afghanistan’ nor to those ‘directly participating in hostilities,’” the appeals court noted. When the DC Circuit weighed in further down the road, it determined that the AUMF authorized detention for those who “purposefully and materially support” those hostile forces, although this week’s ruling makes note that the Circuit Court has failed to ever figure out what “support” exactly means.
“The government contends that Section 1021 simply reaffirms authority that the government already had under the AUMF, suggesting at times that the statute does next to nothing at all. Plaintiffs take a different view,” wrote the court this week.
Definitions aside, however, the appeals court wrote that Hedges and his American co-plaintiffs lack standing to challenge the indefinite detention provisions since a subsection of that rule, 1021(e), frees US citizens from detention under the NDAA.
“We recognize that Section 1021 perhaps could have been drafted in a way that would have made this clearer and that the absence of any reference to American citizens in Section 1021(b) led the district court astray in this case. Perhaps the last-minute inclusion of Section 1021(e) as an amendment introduced on the floor of the Senate explains the somewhat awkward construction,” wrote the court. “But that is neither here nor there. It is only our construction, just described, that properly gives effect to the text of all of the parts of Section 1021 and thus reflects congressional intent.”
At the same time, though, the appeals court acknowledged that Iceland’s Jónsdóttir, co-plaintiff Kai Wargalla of Germany and other foreign persons could be detained indefinitely under the NDAA. Although Jónsdóttir has argued that her well-documented affiliation with the anti-secrecy group WikiLeaks — particularly with regards to classified material its published much to the chagrin of the US government — is enough to land her in hot water, the court said indefinite imprisonment in a military jail cell is an unrealistic fear and she therefore lacks standing.
Jónsdóttir, 46, has been a member of the Iceland parliament since 2009, the same year that US Army Private first class Bradley Manning began supplying materials to WikiLeaks. Jónsdóttir and WikiLeaks founder Julian Assange worked directly with raw video footage supplied by Manning showing a US helicopter fatally wounding innocent civilians and journalists, which the website later released under the name “Collateral Murder.” And although Pfc. Manning is currently on trial for “aiding the enemy” by supplying WikiLeaks — and indirectly al-Qaeda — with that intelligence, the court said Jónsdóttir herself has nothing to fear.

“The claims of Jónsdóttir and Wargalla stand differently. Whereas Section 1021 says nothing about the government’s authority to detain citizens, it does have real meaning regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad,” the court ruled.
Elsewhere, the judges wrote that the government insists that WikiLeaks and Manning provided “some support” to hostile forces by publishing classified intelligence, and that the 25-year-old Army private is indeed facing prosecution for such that could put him away for life.
“One perhaps might fear that Jónsdóttir’s and Wargalla’s efforts on behalf of WikiLeaks could be construed as making them indirect supporters of al-Qaeda and the Taliban as well,” wrote the court. “The government rejoins that the term ‘substantial support’ cannot be construed so in this particular context. Rather, it contends that the term must be understood — and limited — by reference to who would be detainable in analogous circumstances under the laws of war.”
Because “plaintiffs have provided no basis for believing that the government will place Jónsdóttir and Wargalla in military detention for their supposed substantial support,” the court has rejected their lawsuit.
“In sum, Hedges and O’Brien do not have Article III standing to challenge the statute because Section 1021 simply says nothing about the government’s authority to detain citizens,” concluded the court. “While Section 1021 does have meaningful effect regarding the authority to detain individuals who are not citizens or lawful resident aliens and are apprehended abroad, Jónsdóttir and Wargalla have not established standing on this record. We vacate the permanent injunction and remand for further proceedings consistent with this opinion.”
Meanwhile, the court’s decision did little to resolve what actually is allowed under the AUMF. In fact, the court said Section 1021 “does not foreclose the possibility that previous 'existing law' may permit the detention of American citizens,” making note of American Yaser Esam Hamdi and a three-year ordeal that left him without the right to habeas corpus or an attorney after he was picked up in post-9/11 Afghanistan on suspicion of terroristic ties. Instead, it confirmed that foreign citizens engaged with substantially supporting hostile forces— neither of which term is still properly defined — can be locked up in military jails.
Hedges previously said that he thought that the US was already using the NDAA to put some people away.
“If the Obama administration simply appealed it, as we expected, it would have raised this red flag,” Hedges said during an online Q-and-A session on Reddit when the White House last fought back. “But since they were so aggressive it means that once Judge Forrest declared the law invalid, if they were using it, as we expect, they could be held in contempt of court. This was quite disturbing, for it means, I suspect, that US citizens, probably dual nationals, are being held in military detention facilities almost certainly overseas and maybe at home.”
In a statement published to TruthDig on Wednesday, Hedges said that he plans to appeal. If accepted, the case of Hedges v Obama may go all the way to the Supreme Court. That’s a decision that will weigh with the justices, however, and Hedges said they are by no means required to hear their request.
“It is a black day for those who care about liberty,” wrote Hedges.
In her statement to RT, Bolen rejected the notion that she and others lack standing to challenge a law that plaintiffs believe is being used in secrecy.
“Good people have come forward to challenge the madness of the US government in the wake of 9/11 - people who have every reason to fear this atrocious panoply of laws and policies that are fundamentally eroding guaranteed liberties and basic human rights,” she said.
“The United States Government itself is behaving as a terror. Through indefinite detention of innocent civilians at Guantanamo, secret rendition, torture, murder of hundreds of thousands of innocent civilians in Iraq and illegal drone bombings - it is fundamentally eroding the rule of law while harming national security. Courts are contradicting themselves on whether the government has the right to indefinitely detain even its own citizens, Congress has supported dragnet surveillance and other assaults on everything we were founded on, and yet somehow, our fears are only ‘speculation,’” she said.
 

How Obama Ignored Congress, and Misled America, on War in Libya

 

An inside look at his pre-war decision making reveals how the public was misled and the constitution ignored.

We have all seen in the news the terrible conflict in Libya, but we are not all aware of the true story.

We have heard a very one sided argument presented to us from our media.
We have heard many lies, which appear to be covering the truth from us so we cannot make a clear, fair judgment for ourselves.


This film has been created to show the people of the world another side of the story. The side from the Libyan people them selves.

We have been led to believe the majority of Libyans wanted an over- throw of their govnment, but this is far from the truth.

 INCONSISTENT EXPLANATIONS

On March 28, 2011, Obama gave a televised address about Libya. It included this passage about his actions:

Confronted by this brutal repression and a looming humanitarian crisis, I ordered warships into the Mediterranean. European allies declared their willingness to commit resources to stop the killing. The Libyan opposition, and the Arab League, appealed to the world to save lives in Libya. At my direction, America led an effort with our allies at the United Nations Security Council to pass an historic Resolution that authorized a No0Fly Zone to stop the regime's attacks from the air, and further authorized all necessary measures to protect the Libyan people.  

In his telling, (a) America led the effort to establish the No-Fly Zone; and (b) the No-Fly Zone would stop the Libyan regime's attacks from the air.

Compare these assertions to the inside account reported by Lewis (which was vetted by the White House prior to publication):

If you were president just then and you turned your television to some cable news channel you would have seen many Republican senators screaming at you to invade Libya and many Democratic congressmen hollering at you that you had no business putting American lives at risk in Libya. If you flipped over to the networks on March 7 you might have caught ABC White House correspondent Jake Tapper saying to your press secretary, Jay Carney, "More than a thousand people have died, according to the United Nations. How many more people have to die before the United States decides, O.K., we're going to take this one step of a no-fly zone?"
By March 13, Qaddafi appeared to be roughly two weeks from getting to Ben­gha­zi. On that day the French announced they were planning to introduce a resolution in the United Nations to use U.N. forces to secure the skies over Libya in order to prevent Libyan planes from flying. A "no-fly zone" this was called, and it forced Obama's hand. The president had to decide whether to support the no-fly-zone resolution or not. At 4:10 p.m. on March 15 the White House held a meeting to discuss the issue. "Here is what we knew," recalls Obama, by which he means here is what I knew. "We knew that Qaddafi was moving on Benghazi, and that his history was such that he could carry out a threat to kill tens of thousands of people. We knew we didn't have a lot of time--somewhere between two days and two weeks. We knew they were moving faster than we originally anticipated. We knew that Europe was proposing a no-fly zone."
That much had been in the news. One crucial piece of information had not. "We knew that a no-fly zone would not save the people of Ben­gha­zi," says Obama. "The no-fly zone was an expression of concern that didn't real­ly do anything." European leaders wanted to create a no-fly zone to stop Qaddafi, but Qaddafi wasn't flying. His army was racing across the North African desert in jeeps and tanks. Obama had to have wondered just how aware of this were these foreign leaders supposedly interested in the fate of these Libyan civilians. He didn't know if they knew that a no-fly zone was pointless, but if they'd talked to any military leader for five minutes they would have. And that was not all. "The last thing we knew," he adds, "is that if you announced a no-fly zone and if it appeared feckless, there would be additional pressure for us to go further. As enthusiastic as France and Britain were about the no-fly zone, there was a danger that if we participated the U.S. would own the operation. Because we had the capacity."

To summarize, (a) America did not lead the effort to establish a no-fly zone -- it reluctantly signed on to the idea after its hand was forced by the French; (b) the no-fly zone wouldn't stop the regime's attacks because they weren't coming from the air. It was, rather, a preamble to escalation.

Due to the nature of the Libya conflict, these misrepresentations weren't nearly as consequential as, say, the way George W. Bush spoke out about weapons of mass destruction before the Iraq war. It is nevertheless an example of the president deliberately misleading the American people in order to facilitate false impressions about foreign military actions that he finds convenient.

ZERO REGARD FOR CONGRESSIONAL APPROVAL
It's long been established that Obama failed to secure a congressional declaration of war, as the constitution and Senator Obama's understanding of it dictated; and that he violated the War Powers Resolution. It is nevertheless worth revisiting the subject given these new details about his thought process:

Obama insists that he still had not made up his mind what to do when he returned to the Situation Room -- that he was still considering doing nothing at all. A million people in Ben­gha­zi were waiting to find out whether they would live or die, and he honestly did not know. There were things the Pentagon might have said to deter him, for instance. "If somebody had said to me that we could not take out their air defense without putting our fliers at risk in a significant way; if the level of risk for our military personnel had been ratcheted up--that might have changed my decision," says Obama. "Or if I did not feel Sarkozy or Cameron were far enough out there to follow through. Or if I did not think we could get a U.N resolution passed." Once again he polled the people in the room for their views. Of the principals only Susan Rice (enthusiastically) and Hil­lary Clinton (who would have settled for a no-fly zone) had the view that any sort of intervention made sense. "How are we going to explain to the American people why we're in Libya," asked William Daley, according to one of those pres­ent. "And Daley had a point: who gives a shit about Libya?"

From the president's point of view there was a certain benefit in the indifference of the American public to whatever was happening in Libya. It enabled him to do, at least for a moment, pretty much whatever he wanted to do. Libya was the hole in the White House lawn.

Obama made his decision: push for the U.N resolution and effectively invade another Arab country. Of the choice not to intervene he says, "That's not who we are," by which he means that's not who I am. The decision was extraordinarily personal. "No one in the Cabinet was for it," says one witness. "There was no constituency for doing what he did." Then Obama went upstairs to the Oval Office to call European heads of state and, as he puts it, "call their bluff." Cameron first, then Sarkozy. It was three a.m. in Paris when he reached the French president, but Sarkozy insisted he was still awake. ("I'm a young man!") In formal and stilted tones the European leaders committed to taking over after the initial bombing. The next morning Obama called Medvedev to make sure that the Russians would not block his U.N. resolution. There was no obvious reason why Russia should want to see Qad­da­fi murder a city of Libyans, but in the president's foreign dealings the Russians play the role that Republicans currently more or less play in his domestic affairs. The Russians' view of the world tends to be zero-sum: if an American president is for it, they are, by definition, against it. Obama thought that he had made more prog­ress with the Russians than he had with the Republicans; Medvedev had come to trust him, he felt, and believed him when he said the United States had no intention of moving into Libya for the long term. A senior American official at the United Nations thought that perhaps the Russians let Obama have his resolution only because they thought it would end in disaster for the United States.

And it could have. All that exists for any president are the odds. On March 17 the U.N. gave Obama his resolution. The next day he flew to Brazil and was there on the 19th, when the bombing began. A group of Democrats in Congress issued a statement demanding Obama withdraw from Libya; Ohio Democratic congressman Dennis Kucinich asked if Obama had just committed an impeachable offense. All sorts of people who had been hounding the president for his inaction now flipped and questioned the wisdom of action. A few days earlier Newt Gingrich, busy running for president, had said, "We don't need the United Nations. All we have to say is that we think slaughtering your own citizens is unacceptable and that we're intervening." Four days after the bombing began, Gingrich went on the Today show to say he wouldn't have intervened and was quoted on Politico as saying, "It is impossible to make sense of the standard of intervention in Libya except opportunism and news media publicity." The tone of the news coverage shifted dramatically, too. One day it was "Why aren't you doing anything?" The next it was "What have you gotten us into?" As one White House staffer puts it, "All the people who had been demanding intervention went nuts after we intervened and said it was outrageous. That's because the controversy machine is bigger than the reality machine." 

Put more succinctly, going to war in Libya was a close call; there are things various folks could have said to deter him; he ran the decision through executive branch and international channels; most people told him not to do it; but if Congress came into the picture at all, it wasn't enough to merit mention in the retelling, and certainly not enough to follow the constitution and put the prospective war to a vote. The people's representatives were excluded.

The imperial presidency is so well entrenched that a journalist like Michael Lewis needn't really question circumventing Congress to feel as though he's including all the crucial parts of the story about going to war.

That remains a scandal.

And it is telling that Michael Lewis, one of America's finest journalists, didn't even ask Obama about failing to put the decision about Libya before Congress. He didn't ask despite the plain language of the Constitution, Obama's prior statements indicating he fully understood his legal obligations, and the fact that various members of Congress complained about his unilateral action. The imperial presidency is so well entrenched that a journalist like Lewis needn't really question those things to feel as though he's including all the crucial parts of the story about going to war.

That is quite a precedent Obama has set. And Mitt Romney is ready to exploit it if he wins. As he put it: "I can assure you if I'm president, the Iranians will have no question but that I will be willing to take military action if necessary to prevent them from becoming a nuclear threat to the world. I don't believe at this stage, therefore, if I'm president that we need to have a war powers approval or special authorization for military force. The president has that capacity now."