Dear Troublemakers,

We have a problem on our hands. As if the detention provisions of the National Defense Authorization Act (NDAA) weren't bad enough, we now have politicians tripping over themselves to find a cure... but in most cases, the cure is worse than the disease. We raised alarms about the NDAA, concerned that the bill could be interpreted to authorize the military to seize people in the U.S. and detain them indefinitely without trial. Justifiably concerned, lawmakers have introduced legislation to protect us against this interpretation. The problem is how they are defining "us." They are drawing a false distinction between citizens (in some cases lawful permanent residents also) and everyone else, asserting that the Constitution applies to the former, but not the latter.

That is a very dangerous idea that could have far reaching consequences. Please read on, and take action to remind your members of Congress that the Constitution is meant to protect everyone in the U.S., not just citizens.

In Solidarity,
Sue

February Newsletter Contents:

LEGISLATIVE
Due Process and the NDAA
Take Action

LOCAL POLICE
More NYPD Blues

COURTS
Are Boycotts Acts of Terror?

ACTIVISTS
Occupy

LEGISLATIVE
Due Process and the NDAA
Does the National Defense Authorization Act (NDAA) authorize the indefinite military detention without trial of people, including U.S. citizens, suspected of helping Al Qaeda? Or does it merely affirm current executive authorities already granted under the Authorization to Use Military Force (AUMF)? Opinions differ widely, both among members of Congress, and among civil liberties advocates. Although most agree that it does not change current law regarding detentions of individuals seized in the U.S.

At issue are Section 1021, which affirms the authority (under the AUMF) for the armed forces to detain without trial those suspected of aiding Al Qaeda, the Taliban or associated forces, or to transfer them to any foreign country or entity; and Section 1022, which requires that suspected foreign terrorists be initially held in military custody pending determination of their disposition under the law of war. The NDAA does specifically include the possibility of criminal trials as a means of disposition under the law of war.

While Section 1022 explicitly states that it does not extend to U.S. citizens or to lawful resident aliens for conduct while they are in the U.S., Section 1021 does not. Instead, it says that “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,” and that the section does not affect existing law and authorities relating to the capture of persons in the U.S.

The problem with the language in section 1021 is the lack of consensus on what existing law and authorities really are.

On the Senate floor, Senators McCain (R-AZ) and Graham (R-SC) both strongly supported section 1021, and argued that anyone in the U.S., including U.S. citizens on U.S. soil would be subject to indefinite detention without trial under the bill.

Senator Levin (D-MI), who crafted the Section, maintains that it merely affirms current law and is intended to “prevent future administrations from adopting more expansive and problematic interpretations of military detention authority.” In fact, he says he would not have supported the provision if it did what McCain and Graham assert.

In any case, civil liberties and human rights advocates have vociferously argued, in the public arena and in court, that the AUMF does not apply to the detention of people (citizen or not) in the United States. How should we be reacting to these provisions?

Kate Martin, director of the Center for National Security Studies and a member of DDF’s Board of Directors, cautions against advocates interpreting the provisions expansively:

That myth itself, unlike the legislation, will make it easier if any future President wants to ignore the law and the Constitution and start locking Americans up without trial. But perhaps the most pernicious effect of the myth is that in other countries, governments and human rights advocates alike will mistakenly believe that the United States and President Obama have surrendered to those who believe that military detention rather than criminal law enforcement is the way to respond to domestic terrorism, making the fight for human rights in those countries that much harder. Read more...

But the train has already left the station, and advocates and lawmakers concerned about the bill are seeking remedies in Congress and locally. Unfortunately, bills pending in the Senate and House, as well as in several states, focus exclusively on due process protections for U.S. citizens and (sometimes) lawful U.S. residents. This is a tremendous problem, since Constitutional protections apply to all people in the U.S., be they citizens, tourists or undocumented immigrants. Ironically, these attempts to fix the NDAA actually dig us into a deeper hole that potentially has far reaching consequences by sending the signal that only citizens are entitled to basic due process protections. Our task now is to remind our state and federal legislators, neighbors and others, that Constitutional rights are not just for citizens.

Additionally, the focus on U.S. citizens ignores other significant problems in the bill. Specifically, the bill:
- restricts the transfer of detainees from Guantanamo into the U.S. even for trial;
- puts onerous and unjustified restrictions on the transfer of Guantanamo detainees, even those cleared for release to home or third countries.

Take Action
Remind your members of Congress that the Constitution applies to everyone!

LOCAL POLICE
More NYPD Blues
Over a thousand New York City cops are patrolling the streets after going through training that portrayed Muslims as engaged in a “1400 year war” to “infiltrate and dominate America.” This shocking revelation comes on the heels of the controversy surrounding the NPYD’s extensive surveillance programs, which literally map Muslim communities and all aspects of Muslim life in the city and surrounding areas (see DDF Newsletter, Sept. 2011, Oct. 2011)

At issue is a film, The Third Jihad, shown during cadet training. The film includes inflammatory imagery, such as people who appear to be Muslim engaging in acts of terrorism, car bombs exploding, executed children, and repeated images of an Islamic flag flying over the White House. Police Commissioner Kelly appears in the film. In early 2011, the NYPD denied that the film was used during training, and an NYPD spokesperson claimed that Kelly’s appearance was footage from another source, not an interview with the filmmaker. On both counts, the NYPD was wrong. Almost 1500 cadets were shown the film as part of their training, and both Commissioner Kelly and Deputy Commissioner of Public Affairs Paul Browne participated directly in the film.

DDF joined with the Muslim American Civil Liberties Coalition in condemning the NYPD’s unethical and illegal profiling based on religion, race and/or national origin and calling for both Kelly and Browne to resign, and for the cadets who viewed the film to be retrained. See the press release here.

COURTS
Are Boycotts Acts of Terror?
The Center for Constitutional Rights has filed a lawsuit on behalf of five animal rights activists challenging the constitutionality of the Animal Enterprise Terrorism Act (AETA), arguing that the law is too broad, too vague and singles out animal rights activists based on their political beliefs.

We agree!

The AETA criminalizes protests, boycotts, picketing and whistle-blowing and other First Amendment protected actions when they are directed against “animal enterprises” or any business or institution that has “a connection to, relationship with, or transactions with an animal enterprise.” The five plaintiffs are longtime activists whose advocacy work has been chilled due to fear of being prosecuted as terrorists under the AETA. Read more here.

ACTIVISTS
Occupy
Boise, Idaho: February 1, Occupy Boise scored a major victory on February 1, when a State Senate committee voted to raise some procedural hurdles for a bill which would have evicted the occupationThe Idaho House passed a law to evict Occupy Boise from a site across from the Statehouse, where they have been for three months. But the bill which on a fastrack to move through the legislature and includes emergency language allowing it to take effect immediately when/if it is signed by the Governor.

Charlotte, South Carolina: January 23, The Charlotte City Council approved new security rules making it illegal to camp on public property, and giving police new powers to search people and possessions ahead of the Democratic National Convention this summer. On Monday afternoon, January 30, police tore down Occupy tents and carted them away. Seven people were arrested in the process.

Oakland, California: January 28, Police arrested 400 protesters during a march through the streets of Oakland. Occupy Oakland issued a press release stating that the arrests were illegal because police didn’t allow the protesters to disperse. City officials tried to spin the incident by demonizing the protesters: Councilman Ignacio De La Fuente said that Occupy protests amounted to “domestic terrorism,” while Mayor Jean Quan asserted that “most of them constantly come from outside of Oakland.” (NYTimes January 30, 2012)

Miami, Florida: January 31, Police in riot gear moved through the Occupy site to evict protesters after the county refused to extend their camping permit. One arrest was made during the eviction.

Washington, D.C.: The National Park Service (NPS) had been allowing two occupations in D.C. on park property, despite the rules against camping at the sites. The non-confrontational approach drove Representative Darrell Issa (R-CA) crazy, so he ordered up a hearing, calling the D.C. Police Chief and the Director of NPS to the Hill to testify. He also demanded records of any communication between the NPS and the White House regarding the D.C. occupations. The Republicans on the committee were shocked and appalled at the civil relationship between Occupy and the Park Police (one member showed an ‘undercover’ video of protesters admitting that Park Police are respectful of their rights). Having been called on the carpet, Park Police declared they would clear out the campers. Over the weekend of Feb. 4, Park Police in riot gear swept through the two Occupy D.C. sites, dismantling tents and confiscating belongings.

Get more Occupy updates here.