Waging War With Word[s] - NDAA: The Good, The Bad, and the Ugly

UPDATE: H.R. 3166 is a horrifying bill which has just been introduced within the House of Representatives committee process. An identical bill has been introduced within the Senate committee process. It is the next step in the process of ending the Bill of Rights, and allows the government, in coordination with the enforcement of NDAA provisions 1021 and 1022, to revoke U.S. citizenship of any terrorist suspect. Fear tactics abound in Congressman Dent’s co-introduction of the bill.

(For any who have not read Glen Greenwald’s Three Myths About the Detention Bill, it is perhaps the most concise resource that analyzes the wording and implications of citizen-detention provisions 1021 and 1022 in the NDAA. For any who wish to dispel the falsehood that the NDAA [PDF] does not allow for the indefinite, uncharged detention of U.S. citizens on U.S. soil, Greenwald’s article is a critical resource.)

Much has now been written about the National Defense Authorization Act of 2012 (NDAA) and provisions 1021 and 1022 which allow for the indefinite detention of American citizens without due process or right to an attorney. But in many cases, as Claude Debussy said, “Music is the silence between the notes.” Here we will examine some silent implications of NDAA, as well as one troubling misnomer.

The Bad:

The NDAA’s indefinite detention provisions are actually a two-pronged assault on Americans. While the “goals” of these provisions may never be publicly stated, its primary purpose may well be one of deterrence rather than detainment. The banks and corporations that the Occupy movement opposes have seen global financial systems spiral out of their control (as was evidenced by the ongoing derivatives trading and mortgage-bundling crisis first exposed in 2008), and to many, global financial collapse appears imminent. If and when this crash occurs, hundreds of millions of Americans will see their 401(k)s and pension funds evaporate overnight. This will be a strong incentive for direct action; however, merely the threat of indefinite detention may go far as a deterrent. Fear, long the greatest weapon of the 1%, finds a new ally in the NDAA, and will be an ever-strengthening obstacle to overcome when awakening others to the need for direct action.

The Ugly:

There is a dangerous misnomer that the Supreme Court will “save us” by ruling these provisions unconstitutional. NDAA provisions 1021 and 1022 clearly violate the Constitution of the United States, and if challenged would indeed likely fall in favor of justice. When I initially told my father of NDAA and its indefinite detention provisions, he responded:

This is truly a dangerous law that I believe is unconstitutional. Once someone is detained under this law, there will be civil rights champions who will challenge it and take it to the Supreme Court, such as the ACLU. 9/11 began a dangerous time for us and our civil liberties and protections, but all is not lost. There are many people who are aware and who care.

This is correct in intention (plenty of people will wish to do this very thing), but unfortunately not in legality. The procedure of any court (including the Supreme Court) dictates that it will not hear a challenge to a law unless a plaintiff has standing (has been affected by that law personally). Without charges, there can be neither plaintiff nor standing, both of which are definitional to any appeal for allowing the judiciary to evaluate the [un]constitutionality of the NDAA. Additionally, anyone detained under section 1021 of the NDAA will likely be in (indefinite) detention without trial, and unlikely to enjoy the benefit of counsel.

Knowing this limitation, it seems likely that enforcement of NDAA provisions 1021 and 1022 will take place when individuals are isolated. This makes the loss of Occupy encampments across the country especially tragic; an important strength inherent in a close-knit, participatory society is the ability to hide in plain sight. When someone does go missing, people are also much more likely to notice.

A second nugget of ugly: NDAA contains a section that allows the president to transfer suspected members and/or supporters of Al-Qaeda, the Taliban, or the problematic catch-all “associated” groups “to the custody or control of a person’s country of origin, any other foreign country, or any other foreign entity.” (PDF pp.81). This represents a formal legalization of extraordinary rendition of American citizens. This move, while unsurprising, makes FEMA camps the least of many terrifying concerns.

 The Good:

People are waking up to the fact that the government is asserting new ways to molest individuals they deem problematic. This means that you probably will not be arrested off the street, or for protesting, and detained indefinitely under NDAA provisions 1021 and 1022. The whole world is watching; such drastic and visible action would provoke immediate public backlash, and ensuing attention would likely be detrimental to the goals of the bill. NDAA still offers no effective solution to the disembodied, leaderless nature proving to be the greatest strength of the Occupy movement. Although utilizing the encampment model was an excellent strategy for hiding in plain sight, and should be considered as such when deciding whether to pursue re-occupying public spaces in the future, it is not the only strategy that can be effective. Building a strong and communicative support network and watching out for each others’ continued wellbeing will always be the best counter to any threat to individual security.

Thanks to the willful collusion of televised media and many radio outlets, relatively few Americans are even aware of the heinous provisions of the NDAA. With the aid of misinformation and a lack of individual initiative, many Americans wrongly believe the dangers of this law to be overblown. While this cannot be further from the truth, it is important to remember the law has a critical limitation: the moment any person affected by the law finds themselves before a judge, the law can be appealed to the Supreme Court.  

The American government has willfully subverted its own most important tenant: that of life, liberty, and the pursuit of happiness. It is our task as Occupiers to continue to represent the Constitution of the United States, and the fundamental tenants countless thousands over the course of centuries have given their lives protecting.  Fear is the greatest enemy, and inspiring humanity to take back its power will always be Occupy’s greatest task. Working together, armed with justice, we cannot fail.