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What Comes Next? The Future of the NDAA

The dead of night (image: photomequickbooth/flickr)

The dead of night (image: photomequickbooth/flickr)

This is the final part of a 3-part FAQ about the National Defense Authorization Act (NDAA) that began with Another Assault in the Dead of Night and continued with Torture Enabling Expanded Detention.

The first installment explained how the NDAA could be used as a tool for political repression, especially in concert with parallel powers expanded by the PATRIOT Act, and upheld by the Supreme Court, that apologists for the NDAA have generally ignored.

The second installment explained how our nation’s failure to pursue accountability for torture enabled the NDAA’s passage, and also portends the recurrence of torture under the domestic military detention regime the NDAA has authorized. It concluded by noting that torture could create artificial legitimacy for military detention by coercing confessions from whomever is subjected to it.

Put simply, allowing torturers to go free created the conditions to politically whitewash abuses whose predictable recurrence the NDAA will enable.  When torture recurs, it will in turn confer false legitimacy on a profoundly un-American system and undermine political will to restore limits on our government’s power, however deviously it may develop in the future.

Q: Have similar laws caused abuses elsewhere? A: Do political repression and genocide count?

Both world history and current events offer crucial insights on the potential results of authorizing detention without trial.

Those results once inspired our nation to wage a World War.  According to the U.S. National Holocaust Memorial Museum:

German authorities under National Socialism established a variety of detention facilities….In time their extensive camp system came to include concentration camps, where persons were incarcerated without observation of the standard norms applying to arrest and custody….

“[U]nofficial” killings….[were] routinely written up as “suicides,” “accidental” deaths, and “justified killings” of prisoners who were “trying to escape,” “assaulting a guard,” “sabotaging production,” or “inciting prisoners to revolt.…”

Incarceration in a concentration camp was rarely linked to a specific crime or actual subversive activity; the SS and police ordered incarceration based on their suspicion that an individual person…would likely commit a crime or engage in a subversive activity in the future.

On the one hand, Nazi concentration camps were certainly worse than the U.S. military detention facilities at, for instance, Guantanamo Bay.  On the other hand, the legal powers then used by the German government have disturbing equivalents in the contemporary United States:

• the NDAA codifies the power to “incarcerate without observation of the standard norms applying to arrest and custody”;

• homicides at Guantanamo have long been whitewashed as “suicides”; and

• millions of Americans have been subjected to overbroad and unjustified suspicion of potential terrorism, including Muslims, environmentalists, armed servicemembers returning to the US from deployment in Iraq and Afghanistan, and supporters of a leading candidate for the Republican presidential nomination.

President Obama’s pledge not to abuse the dangerous powers codified by the NDAA should offer little comfort.  “It is not the use but the right to use such powers that defines authoritarian systems.”  As I’ve written before, “the ambiguity created by the [NDAA] could be construed by future Presidents (or their advisors) to confer dramatic, sweeping powers….”

Perhaps the most bizarre element of the NDAA’s sordid saga is its timing: it eroded the right to trial in America mere months after popular uprisings across the Arab world mobilized to shrug off similar military detention powers, which had long been abused by their respective governments.  Rather than learn from their example, our leaders blithely followed their footsteps…but in the wrong direction.

Q: For whom does the NDAA represent a victory?  A: Dick Cheney, Al-Qaeda, the CIA, and King George III

Our President once spoke of the choice between liberty and security as a false one.  He could learn a lot from himself. Another world-historical African-American leader once famously observed American “chickens coming home to roost.”  Malcolm X’s observation appears especially stark in light of recent history.

Al-Qaeda is primarily responsible for inspiring the fear that has driven Congress to such totalitarian lengths as to abrogate the right to trial, potentially for US citizens engaged in non-violent acts of dissent.  Our leaders’ resignation of our constitutional rights reflects an enormous (and tragic) defeat at the hands of terror, ironically in the same year that we finally killed Osama bin Laden.

Again, history is instructive: al-Qaeda’s victory over American constitutionalism can be laid at the CIA’s feet.  Whether due to astounding incompetence, or a deviously intricate scheme to subvert our government, the CIA trained, funded, and equipped the precursors of al-Qaeda back in the 1980s, as a proxy force to fight the Soviet Union.

We’ve spent the last decade shredding our own rights, and fighting multiple wars abroad, in an effort to essentially put genies unleashed by the CIA back into their bottles. Which is to say, Congress is today more concerned about a CYA for the CIA than it is about the Constitution that every member swore an oath — and that millions of servicemembers have died — to defend.

I’ve written before about the impacts of President Obama’s decision to allow impunity for torture, in violation of the Nuremberg precedent. Most recently, it enabled the continued influence of neo-cons over Congress and Dick Cheney’s opportunity to lobby for the NDAA. More historically, it sacrificed our nation’s victory in the Second World War 60 years after having won it by resigning the international human rights principles we once fought to establish.

We’ve similarly resigned our nation’s victory in the Cold War, 20 years after having won it, by constructing the most expansive surveillance state in human history.

The NDAA undermines principles established in the American Revolution, 250 years ago, by rendering the right to trial subject to the whims of future Presidents, despite the explicit protections the Constitution was designed to afford.  It threatens even the Magna Carta nearly 800 years after our British forebears secured habeas corpus, which is simply incompatible with detention without trial.

Q: Is democracy doomed?  A: Not yet

The passage of the NDAA may seem to reflect an inexorable creep of the national security state.  After all, members of Congress passed the law without even understanding what they were voting for, the corporate mainstream media essentially ignored the issue, and the White House signed the bill despite dozens of grassroots actions around the country and thousands of concerned Americans jamming the White House phone lines last month.

But hope, like opportunities for grassroots action, springs eternal.  Bills have already been introduced in the House and Senate that would narrow the NDAA’s detention provisions.  Voters in Montana have already started a recall campaign to remove the Senators who voted for the NDAA.  And the Colorado county that houses the Air Force academy already passed a resolution declaring its opposition to detention without trial and support for constitutional rights.  Each of these examples indicate opportunities for concerned Americans to raise our voices in the new year.

In turning the tide to repeal the expansion of military detention, We the People of the United States may yet rediscover the principles that once made our country the Land of the Free.

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Shahid Buttar

Shahid Buttar