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"Indefinite detention": A Song In Search of a Barbershop Quartet or Two

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Some pundits assert that it is not clear how sections 1021 and 1022 might apply to American citizens as section 1021 contains the following provision: "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."   That sounds like American citizens are exempted from indefinite detention, until you do some background reading and discover that legal scholars argue the government has already written itself the right to detain U.S. citizens indefinitely without trial under "existing law" (pre-NDAA 2012, like the Authorization to Use Military Force, or AUMF).  By this scholarly account, the NDAA is just a coup de grace putting out of their misery our already mortally wounded Constitutional rights.

For instance, even before NDAA 2012, the government had already subjected an American citizen, Jose Padilla, to indefinite detention, and made accused whistle-blower Bradley Manning (tentatively credited with releasing to wikileaks the Collateral Murder video referenced above) suffer in psychosis-inducing isolation, sometimes naked and shivering in his cell, for a couple of years before intense protests convinced the Obama administration to put him in somewhat more humane detention conditions. 

Manning's case offers evidence that some powerful people in government consider non-violent whistle-blowing on U.S. military atrocities to be a terrorist attack, which explains not only Manning's treatment but also the calls by some government officials to extra-judicially assassinate wikileaks founder Julian Assange.  Though Assange is not a U.S. citizen, he is a citizen of Australia--a close ally.  Assange is now living at the Ecuadorian embassy in Britain and denied safe transfer.  Recent leaks suggest the U.S. considers Assange an "enemy of the state"--like, say, Osama Bin Laden and Anwar Al-Awlaki used to be.  Manning may finally receive a trial in spite of this climate of hair trigger paranoia--though any such trial would be held in a military court, of course, complete with the requisite kangaroos.  With regard to Assange, however, I fear that the U.S. will find a way to dispatch him without the public relations messiness of putting a journalist on trial.

In addition to detaining U.S. citizens without respecting their Constitutional or human rights, the Obama administration has taken a hard line against allowing any kind of accountability for torturing people.  Obama does not even want to give justice to two American contractors, Donald Vance (a U.S. Navy veteran) and Nathan Ertel, whom various U.S. government agencies tortured "by mistake" after they trustingly reported to the FBI their suspicions of illegal activity (like dealing arms to death squads) by the Iraqi company they were working for (Shield Group Security).  In addition to being indifferent to the torture of U.S. citizens with enhanced interrogation techniques, the Obama administration has actually assassinated a few American citizens as well, including Anwar al-Awlaki (who made pro-Al Qaeda youtube videos) and his sixteen year old child.  Needless to say none of these dead Americans were tried in court, let alone charged with anything.

Perhaps this kind of government behavior was intended to keep our expectations low enough that the NDAA would be perceived as raising the heat just one degree higher as part of the long, slow boiling of the U.S. Constitutional frog--as the old tale goes, slowly-boiled frogs do not jump out of the pot.  Part of the NDAA's coup de grace against American Constitutional and human rights is the option, implied in section 1022, to hold U.S. citizen detainees in military custody indefinitely.  Section 1022 notes that the NDAA 2012 does not oblige the government to put U.S. detainees in military custody, but neither does it recognize U.S. detainees' Constitutional rights to be clearly charged, provided with a lawyer and determination of bail, and then held in civilian jails under habeas corpus while expecting speedy trials before juries of their peers in civilian courts.  The precise language in 1022 is simply, "the requirement [italics mine] to detain a person in military custody under this section does not extend to citizens of the United States."  Hooray"? [2]  

All this vague language around who could reasonably be detained indefinitely without trial under military custody led Chris Hedges and a number of other journalists and public figures (including Noam Chomsky and Daniel Ellsberg) to sue the Obama administration out of concern that their normal journalistic and activist activities might be covered under one or both indefinite detention sections of the NDAA.  The plaintiffs argued, therefore, that the bill infringes on their First Amendment rights.  Journalistic activities have, for Hedges at least, historically included interviews with members of groups designated terrorist organizations as well as the Taliban.  These interviews have involved extensive contact and shared movement, and might also be construed by some as offering "substantial support" insofar as interviews allowed these groups to publicly assert their positions.

Shockingly, the Obama administration refused to rule out indefinitely detaining the plaintiffs for their journalistic activities in the future, and so the District Court ruled that sections 1021 and 1022 are too vaguely articulated, and in their present form violate the plaintiffs' first amendment rights and thus the U.S. Constitution.  Recently District Court Judge Forrest, who presided over the case, issued a permanent injunction against the indefinite detention provisions of the NDAA.  The Obama administration continues to appeal the decision.

This is an odd move by the government.  After going to such great lengths in the media to make it look like U.S. citizens probably would not be indefinitely detained under the NDAA (at least not under a compassionate and loving Obama administration), why would Obama's lawyers in the District Court case refuse to rule out indefinitely detaining not only American citizens but American journalists?  Isn't that kind of refusal a clear giveaway about the broad scope of "covered persons" under the act?

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Notably, and consistent with the government's current refusal to rule out detaining journalists under the NDAA, some of the U.S. citizens (and citizens of close allies) that Obama has assassinated, tortured, indefinitely detained or declared "enemies of the state" include (1) an individual whose support for al-Qaeda was more or less rhetorical (al-Awlaki, assassinated with his 16 year old son), (2) an individual accused of blowing the whistle on government atrocities (Bradley Manning, indefinitely detained and tortured), and (3) an individual who journalistically disseminated the content of this whistle-blowing (Julian Assange, discussed in government documents as an "enemy of the state").  This indifference to the free speech rights and basic rights to procedural justice, dignity, and life of American citizens (and citizens of close allies) makes it difficult to remember that there once was a time when American citizens and their allies could feel protected from other governments by having the appropriate passport when travelling abroad--it was kind of like a "don't mess with me" amulet.  Now the American empire that once protected us eyes us with drones at the ready.  What we built up to fight monsters has now become one [3] .

I want to believe that Obama secretly intended to provoke the court into declaring NDAA 2012 unconstitutional because he really doesn't want to be the dictatorial handmaiden of the military-media- financial-corporate-industrial complex that the pressures of his office force him to be.  Deep in his heart, I hope, he's still beloved Candidate Obama of 2008, deftly employing the power of his office to do as much good as possible and as little harm as possible as he makes only the most absolutely necessary moral compromises in his valiant attempt to govern better than the Republicans whose agenda is so much worse [4] .  I cannot rule out, however, the possibility that Obama simply figured that no one with substantial media impact would ever make a big deal out of the District Court case.  Well, I'm making a big deal out of it and...oh.  Good move, Obama.

What is perhaps most atrocious and disturbing about NDAA 2012 is the widespread bipartisan support it received.  In the first Senate vote, after the attempt to remove or modify the indefinite detention sections of the bill was soundly defeated, the Senate voted 93 to 7 in favor of ratifying the NDAA.  93 to 7.  Of the seven nay votes, three were Republicans, three were Democrats, and one was independent (actually, socialist--Bernie Sanders of Vermont [cheer]).  Almost all were from relatively low population states that do not require multi-million dollar campaigns for candidates to win office.  It is thus plausible to see money rather than conservatism as the main culprit of this bill. The bill was pushed through both houses of Congress relatively quickly, with barely any debate.  The attempt by stunned human rights organizations to raise the alarm gained what minimal momentum it achieved far too late.  Obama signed the bill into law on New Year's Eve, 2011 into 2012.  It is difficult to interpret what this symbolic choice of date was intended to mean, but it is hard not to imagine that the intent was to spread an ominous pall of doom over the New Year.  So far, he has been successful.

The song

And now a few words of introduction to my as yet unperformed song about the NDAA.  I am somewhat concerned that more earnestly-inclined readers will find the tone of the song (and the numerous pre-ambulatory paragraphs introducing it) inappropriate.  It might seem dangerous to employ a sardonic demeanor when one's society is on (or past) the brink of fascism.  In the mid-1960's, songwriter and mathematician Tom Lehrer put out three albums of some of the best social and political satire ever written, and then abruptly stopped writing and performing.  When asked why, he replied, "Political satire became obsolete when Henry Kissinger was awarded the Nobel peace prize."  He had a point.

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There are certainly moments when I would like to see some soma-disrupting alarm-raising sobreity from otherwise brilliant contemporary satirists like John Stewart and Stephen Colbert, but then their ratings would drop, and people would again have to get their news from serious-looking journalists (and serious-looking corporate hacks disguised as journalists).  The upshot of this infotainment withdrawal would likely be a regressive descent into dissociative fantasy for a good share of the US population.  Out of deference to our addiction to handling unbearably horrifying facts through the comforting filter of irony, therefore, I am going to defend my sardonic tone as a necessary anesthetic for a traumatized national patient.

As Tom Lehrer's work illustrated, songs can be efficient and memorable carriers of message, so a song about the NDAA should be a worthwhile addition to the troubling and still too rare news pieces about this assault on our Constitutional and human rights.  Perhaps I should have tried harder to write a directly and earnestly outraged song, but it's difficult to soberly engage a subject like the 2012 National Defense Authorization Act without slipping into despair or paranoia, and difficult to soberly engage any subject while trying to make each pair of lines rhyme.  I can, at least, attest to the fact that my song is not funny (unlike Tom Lehrer's work, which is typically hysterical), but if it makes you laugh, my apologies.

The angle I've taken in the song is to send up the "bipartisan" nature of the NDAA.  I consider NDAA 2012 a classic example of the toxic bipartisanship that gave us the Patriot Act, Guantanamo, the Afghanistan and Iraq Wars, and everything else that has begun to consume the fragile resurgence of peace, procedural justice and democracy that the world had been cautiously enjoying after the Cold War ended.

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Ian Hansen is a social psychology professor specializing in cultural and political psychology and a part time activist on behalf of the good things in life.

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