Tag: ndaa

Bradley Manning supporters among plaintiffs of NDAA indefinite detention injunction

WikiLeaks volunteer and Bradley Manning Support Network advisory board member, Birgitta Jonsdottir, who produced “Collateral Murder” helicopter video, fears retaliation

WikiLeaks volunteer and Bradley Manning Support Network advisory board member, Birgitta Jonsdottir, who produced “Collateral Murder” helicopter video, fears retaliation

[First posted for the Bradley Manning Support Network on May 17, 2012.]

U.S. District Judge Katherine Forrest delivered an important victory for civil liberties with an injunction late Wednesday prohibiting enforcement of Section 1021 of the National Defense Authorization Act. Noted supporters of PFC Bradley Manning were among those given standing to proceed, on the grounds that the vague language in Section 1021′s provision allowing for indefinite military detention curtails their free speech and due process rights.

Birgitta Jonsdottir — a member of the Icelandic Parliament who helped produce the “Collateral Murder” video allegedly released by PFC Manning — expressed concern in her affidavit that her work in support of WikiLeaks and Bradley Manning could endanger her future Constitutionally protected endeavors.

“[Jonsdottir] stated that Manning allegedly leaked the footage that formed the basis for the video “Collateral Murder.”  She has received a subpoena for her Twitter and other social media accounts for materials relating to Julian Assange and Bradley Manning. Jonsdottir stated that due to that subpoena, and now in addition due to the passage of § 1021, she is fearful of travelling to the U.S.”

In a prior hearing, government lawyers representing the defendants (the most prominent being President Obama and Defense Secretary Leon Pannetta) had refused to offer the judge a single example of “what it means to substantially support associated forces” of terrorism. In Wednesday’s ruling, Judge Forrest affirmed that Jonsdottir had a legitimate reason to be concerned over the government’s refusal to explicitly exclude her work from the provision’s scope:

“Failure to be able to make such a representation… requires the court to assume that, in fact, the government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by 1021.”

Government agents have already actively targeted supporters of Bradley Manning, such as Support Network co-founder David House.  House recently secured standing in a separate lawsuit against the Department of Homeland Security due to a politically motivated search and seizure of his laptop and other electronic equipment.

Given the U.S. government’s Twitter subpoena and harsh treatment of other supporters of PFC Manning, Jonsdottir has already been forced to curtail her freedom of speech. She has had to decline invitations to speak in the United States out of concern that she could be held indefinitely if the government chose to interpret the provision against her.

However, Jonsdottir is inspired by Judge Forrest’s injunction.  Speaking to a representative of the Bradley Manning Support Network this morning, she added:

“Those who criticize their government should never be made to fear the prospect of life in prison.  And yet, a judge has just agreed that I have a legitimate reason to be concerned for doing nothing more than helping Bradley Manning to expose the unjust killing of civilians and journalists.”

Jonsdottir is referring to the Collateral Murder video Bradley allegedly released to WikiLeaks, which shows U.S. Apache soldiers gunning down Reuters journalists and Iraqi civilians coming to aid the wounded. Spc. Ethan McCord, who can be seen in the video carrying a wounded child to safety, has stated that this video “belongs in the public record.” For allegedly exposing this video and classified cables documenting other war crimes and governmental abuse, Bradley faces trial and a potential life sentence for “aiding the enemy,” instead of being rewarded for aiding the public.

Government prosecutors have been utilizing a similarly broad, flawed, and dangerous interpretation of the “aiding the enemy” charge in Bradley’s case.  They have conceded that Bradley’s intentions were “pure” and they refuse to discuss any evidence of actual harm to national security caused by WikiLeaks — because there isn’t any.  Vice President Biden long ago confirmed that fact. As the ACLU has noted, government prosecutors have gone way too far in their interpretation of the law. If they succeed in their retaliation against Bradley, they will have established an alarming precedent: that any soldier risks life in prison any time they speak to the press, because even a harmless, unintentional revelation of restricted information could be interpreted as aiding terrorism.

But this NDAA injunction is a step toward progress. It is heartening that Judge Forrest agrees that open-ended threats must not be used to suppress our First Amendment right to speak out — especially those who are supporting whistle-blowers like Bradley Manning.

Bradley Manning is scheduled to resume a series of pre-trial hearings at Fort Meade from June 6 – 8.

Progress and the NDAA

Compare what internment-victim Gordon Hirabayashi fought in 1942 with what is now legally codified under the most recent National Defense Authorization Act

Last week, Gordon Hirabayashi, a Japanese-American who was imprisoned for refusing the federal government’s internment camps during World War II, died at 93. He’s a little-known hero, and here’s what he was up against:

In February 1942, two months after the Japanese attacked Pearl Harbor, President Franklin D. Roosevelt, in the name of protecting the nation against espionage and sabotage, authorized the designation of areas from which anyone could be excluded. One month later, a curfew was imposed along the West Coast on people of Japanese ancestry, and in May 1942, the West Coast military command ordered their removal to inland camps in harsh and isolated terrain.

Forty years later, and less than 30 years ago, Hirabayashi was finally “vindicated” as his conviction was overturned, but he used his freedom to speak on his Constitutionally protected rights:

Mr. Hirabayashi and his fellow Japanese-Americans Fred Korematsu and Minoru Yasui, who all brought lawsuits before the Supreme Court, emerged as symbols of protest against unchecked governmental powers in a time of war.

“I want vindication not only for myself,” Mr. Hirabayashi told The New York Times in 1985 as he was fighting to have his conviction vacated. “I also want the cloud removed from over the heads of 120,000 others. My citizenship didn’t protect me one bit. Our Constitution was reduced to a scrap of paper.”

Compare what Hirabayashi was fighting in 1942 with what is now legally codified under the most recent National Defense Authorization Act (NDAA), which President Obama threatened to veto until it included language allowing U.S. citizens to potentially be indefinitely detained.

Here are the relevant sections of the NDAA on indefinite detention:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AU- THORIZATION FOR USE OF MILITARY FORCE.

IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.

Those “covered persons”:

(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 forces that 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.

Length of detention:

Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

Presidential waiver:

WAIVER FOR NATIONAL SECURITY.—The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

Paragraph (1) on United States citizens:

(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.

As you can read, the bill’s language makes little effort to conceal the newly granted power for the president to simply tell congress that it’s in the interest of national security to indefinitely detain U.S. citizens deemed to have “directly supported” American enemies. (Bradley Manning, by the way, is accused of indirectly “aiding the enemy,” so this bill is just a word short of ending his trial altogether.)

I don’t intend to suggest that the potential for indefinite detention of American citizens is inherently worse than that of citizens anywhere else – it’s not. International law is supposed to enforce due process for people anywhere and everywhere.

I also don’t want to overstate how new these powers are: instead, the NDAA merely codifies and legalizes what the Obama administration has already claimed the power to do.

Finally, I’m not suggesting that these NDAA provisions are equivalent to the horribly racist and dehumanizing Japanese-American internment camps. They are merely the legal language used to allow for similarly heinous abuses of the Bill of Rights.

But I think it’s worth noting that in 1942, President Roosevelt claimed “protecting the nation against espionage and sabotage” was sufficient justification for creating internment camps specifically for Japanese-Americans. And 70 years later, how far have we come? We now have a president with substantial progressive support ensuring that American citizens can be indefinitely detained at his whim, all in the name of “national security.”

The erosion of our civil liberties in America is rarely going to be as sharply obvious as it was in 1942, when racism was much more overt, a World War was raging, and the Internet wasn’t around to spread dissenting opinions so easily. Nowadays, the government uses official public language promising us of transparency, respect for the rule of law, and enforced civil liberties to make covert work against those very ideals that much harder to see.