Last week my half-baked diary mocking media was (mis-)reported by CBS, despite being not newsworthy, and ironic, given my warning of censorship. I believe this diary is extremely newsworthy, provides critical analysis & evidence missed by Congress, media & US judges that is crucial to saving the future fabric of our constitutional democracy, which hinges on the fate of the National Defense Authorization Act 2012 that is being aggressively defended in US federal courts by Pentagon & Obama lawyers, but universally misunderstood by seemingly everyone else.
I believe Carl Mayer, co-lead counsel for the plaintiffs suing to block NDAA 1021b understated the import of this case when he recently stated:
“This may be the most significant constitutional standoff since the Pentagon Papers case.”
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.
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.
"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..."
* 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."
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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."
"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."
'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...
* For my recent elaborations, also see my blog: http://theglobal99movement.blogspot.com/ (e.g. see my 7/15/12 article, "Scandal Congress & Media Missed" on ways such totalitarian powers have been & can be used in the USA).
For evidence journalists/academics/critics are being covertly attacked with totalitarian methods & warfare, see my (8/30/12) article, "Could Glenn Greenwald Sue US/Corporate Entities Linked to Plot to Discredit/Silence Progressive Journalists/Activists?"