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Can the US Government be Trusted as Judge and Jury in NDAA Indefinite Detention of U.S. Citizens?

By Ralph Lopez - Posted on 04 January 2012

Now that the issue has been thoroughly disposed of despite an all-out disinformation campaign led by Obama himself: that the National Defense Authorization Act of 2011  does apply to American citizens, it is time to ask: Who makes the determination, with no evidence or showing of probable cause required, without right to counsel or any contact with family or friends allowed, that you have "substantially supported...associated forces" of Al-Qaeda?  

To pre-empt the shills and disinfo artists who continue to attempt to proclaim that NDAA does not apply to American citizens, a simple boiler plate dissection of the key language you can share with the kids on your block:

Section 1021

(b) COVERED PERSONS.—A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forcesthat are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

“Substantial support” of an “associated force” may imply
citizens engaged in innocuous, First Amendment activities.
 Direct support of such hostilities in aid of enemy forces
may be construed as free speech opposition to U.S. government
policies, aid to civilians, or acts of civil disobedience.

Rep. Tom McClintock opposed the bill on the House floor saying it:

 "specifically affirms that the President has the authority to deny due process to any American it charges with “substantially supporting al Qaeda, the Taliban or any ‘associated forces’” — whatever that means.
    Would “substantial support” of an “associated force,” mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don’t know."

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a
person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111– 84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) AUTHORITIES.—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.

"Existing law" is Fourth Circuit in Jose Padilla.


        (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

 Even if US citizens are not "required" to be detained by the military in terrorism cases,  it is still "allowed."

Now back to the question.  Who decides, without benefit of a jury, collection and presentation of evidence, counsel for the accused, all that American stuff, who is guilty and who is not in the "war on terror?"  Perhaps the better question, given that "the government" encompasses such a vast array of agencies, is "what manner of men hold authority in our country?"

The manner of men who said it was "100% certain" that Brandon Mayfield's fingerprints were a match in the Madrid train bombing, until the Spanish authorities went public with the FBI error after telling the FBI privately, repeatedly, that they had the wrong guy in Mayfield.  Mayfield would be rotting in prison this very moment were it not for the Spanish government.

The manner of men who arrested Johnnie Lee Savory at the age of 14 for a double murder he did not commit, who is still denied the DNA tests by State of Illinois which he says will prove his innocence, to be of no cost to the state as they would be paid for by his supporters.  Tavis Smiley of PBS has taken up Savory's quest, as has the Center on Wrongful Convictions at Northwestern University School of Law.


Watch Innocence Project Panel Discussion Part 2 on PBS. See more from Tavis Smiley.

The same manner of men, who are addressed as "Justices" who sit on the US Supreme Court who decided that 7 out of 9 eyewitnesses recanting did not constitute sufficient "reasonable doubt" to warrant a new trial, and allowed Troy Davis to be executed on September 21, 2011, in the State of Georgia,  a day which, as Mark Twain said, made one "ashamed of being a member of the human race."

The same manner of men who framed World War II hero Louis Greco, who died in prison after serving 15 years for a crime he did not commit, and the government knew it.  In the suit in which his family won part of a $101 million settlement Federal Judge Nancy Gertner said the FBI participated in ''the framing of innocent men,'' and that ''F.B.I. officials up the line allowed their employees to break laws, violate rules and ruin lives.''

The same manner of men who framed John Thompson, who was "railroaded" even according to Supreme Court Justice Antonin Scalia "by a miscreant prosecutor," but from whom the court nevertheless stripped a $14 million wrongful conviction award from.  NY Times:

Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence.

At one point during his 14 years on death row, Thompson came within weeks of execution.

Rep. McClintock said in opposing the NDAA that it:

"specifically affirms that the President has the authority to deny due process to any American it charges with “substantially supporting al Qaeda, the Taliban or any ‘associated forces’” — whatever that means.

 Would “substantial support” of an “associated force,” mean linking a web-site to a web-site that links to a web-site affiliated with al-Qaeda? We don’t know."

But even more than "we don't know," who will say?  Who will assert, without even the barest minimum of evidence now required by our eminently fallible civilian court system, who has done what and why?  This same manner of men.

The list goes on and on.  There have been nearly 300 DNA exonerations since 1989, causing  Illinois Republican Governor George Ryan to suspend executions, saying he had:

grave concerns about our state's shameful record of convicting innocent people and putting them on death row.

Now these men will be allowed to proceed unhindered by NDAA, with no pesky lawyers, judges, or sharp-minded observers pointing out discrepancies looking over their shoulders.  Is this what we want?

Will there be a pattern to any coming injustices under NDAA?  We may not know in our lifetimes.  It was hundreds of years before scholars of the Salem Witch Trials noted "potentially telling differences between the accused and the accusers in Salem":

 Most of the accused lived to the south of, and were generally better off financially, than most of the accusers.  In a number of cases, accusing families stood to gain property from the convictions of accused witches.  Also, the accused and the accusers generally took opposite sides in a congregational schism that had split the Salem community before the outbreak of hysteria.

We just won't know.  But this is a future we can put a stop to if we demand clear language in the NDAA consisting of exactly the following words, with not a single one missing: "Nothing in this bill shall be construed to abridge the Sixth Amendment rights of U.S. citizens, under any circumstances."


 "Facebook: "Recall Every Congressman Who Voted for the NDAA."

Arrests at White House Over NDAA Military Detention of Americans, Occupy Wall Street Joins Fight.

"For States With No Federal Recall Law"



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