While people in Tahrir Square and elsewhere around the world are putting their lives on the line in order to free themselves from the grip of military rule and create democratic societies, the U.S. Senate has moved America in the opposite direction, passing a bill that gives the military unprecedented power to seize suspected terrorists, including American citizens, anywhere in the world, including on U.S. soil, and keep them locked up indefinitely without charge or trial.
The $662 billion National Defense Authorization Act of 2012, S. 1867 (NDAA) was approved in the Senate on Thursday, December 1 by a vote of 93-7. After passing the measure, the Senate incorporated it into the related House bill—H.R. 1540—which passed in Congress on May 25 by a vote of 322-96. Since Congress does not have the authority under the Constitution to initiate appropriations, the bill now returns to Congress for reconciliation.
Opponents of the bill say it violates the due process rights of the U.S. Constitution and gives states too much power. When the House version of the bill passed last spring Indigenous Peoples worried that the legislation could be used against them for asserting their rights to self-determination and sovereignty or for protecting their lands and resources against exploitation by governments or corporations.
President Obama opposes certain provisions of S. 1867 and has promised to veto it, but the overwhelming support for the bill in Congress means it could easily override a veto. In a statement issued November 17 by the Executive Office of the President, Office of Management and Budget, the administration said that it strongly objects to the military custody provision of the bill. “This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States… would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”
The bill, which was drafted by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.), gives the president and future presidents the unfettered authority to wage war against Al Qaeda, the Taliban and “associated forces,” without defining what those might be.
Hundreds of terror suspects have been prosecuted in federal court, throughout the Bush years, and under Obama, Andy Worthington wrote in an article on Common Dreams, “but supporters of military custody like to forget this... Underpinning it all is the Authorization for Use of Military Force (AUMF), the founding document of the “war on terror,” passed the week after the 9/11 attacks. This authorizes the President to pursue anyone, anywhere who he thinks was involved in the 9/11 attacks, and it is a dreadfully open-ended excuse for endless war… ”
The new defense bill unlinks the AUMF from 9/11, and expands it by asserting 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.” The bill defines “covered persons” broadly and ambiguously as anyone who is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and (anyone found) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”
Since the bill mandates military custody for captured terror suspects, it will be virtually impossible for detainees to be transferred from military custody to civilian custody. The bill also prevents shutting down Guantanamo by prohibiting spending on new or expanded prisons in the U.S.
S. Amdt. 1068, an amendment authorizing torture introduced by Sen. Kelly Ayotte and co-sponsored by Sen. John McCain (R-Ariz.) and Sen. James Inhofe was ruled “non-germane” during the Senate discussion of the bill on November 30. Ayotte, Sen. Joe Lieberman and Sen. Lindsey Graham can be seen here defending their eagerness to institutionalize secret torture against terror suspects. Earlier in the week 26 retired military leaders urged the Senate to support an amendment by Sen. Mark Udall (D-Colo.) that would uphold the ban on torture, but the amendment was voted down. Former Vice President Dick Cheney, a champion of harsh torture tactics, was a guest at the Republican lunch before the vote was taken, the Washington Post reported.
Sen. Rand Paul (R-Kentucky) was a vocal opponent of the bill. On November 29, he posted a video on his website explaining why. He emphasized that the legislation would allow the military to detain indefinitely without a trial suspected al Qaeda sympathizers. “I want to repeat that. We are talking about people who are merely suspected of a crime. And we are talking about American citizens,” Paul said. “If these provisions pass, we could see American citizens being sent to Guantanamo Bay. It puts every American at risk. The only thing protecting innocent Americans from the heavy hand of ‘a too powerful state’ is the Constitution. Detaining citizens without a court trial is not American. In fact, this alarming arbitrary power is reminiscent of Egypt’s permanent emergency law authorizing permanent detention—a law that provoked citizens to tear their country apart last spring and risk their lives to overcome tyranny.”
The NDAA was widely opposed by the executive branch and agencies. Strong opposition was voiced by the Secretary of Defense Leon Panneta, CIA Director David Petraeus, Director of National Intelligence James Clapper and FBI Director Robert Mueller, all of whom have said the bill’s detention provisions are harmful and counterproductive to their work. “One of the even more extraordinary things about the Senate’s custody provisions is not only that they are a mangled, scrambled mess, but also that no one who will be required to obey them wants anything to do with them,” Worthington noted. “The executive branch, the military, the FBI and the CIA — no one asked for this new policy.”
What does all this mean for American Indians? Congress passed H.R. 1540 last spring, shortly after two incidents in which the government conflated American Indians with terrorism—the military’s use of Geronimo as the code name for Osama bin Laden and the revelation that military commission prosecutors had compared the Seminole Indians to terrorists and had cited Andrew Jackson’s murderous actions against the Seminoles as a justification and precedent for prosecuting Al Qaeda suspects.
The use of Geronimo’s name generated a flurry of outrage in articles, columns and letters that went viral on the Internet (search for “Geronimo” on ICTMN’s website), including a letter from Fort Sill Apache Tribe Chairman Jeff Houser asking President Obama to issue a formal apology for associating one of the most enduring and heroic figures in Indian country with the name of the man who epitomized global terrorism.
In the issue involving the Seminoles, prosecutors in the case of Ali Al Bahlul, a Guantanamo detainee convicted of “providing material support for terrorism” to Al Qaeda, reached for a historic precedent in military law to support their claim that providing aid is a war crime under the jurisdiction of the military commission. Defense lawyers argued it was not a recognized war crime and that Congress cannot create new war crimes not accepted internationally as violations of the rules of war. The case the prosecutors cited occurred in 1818 when then Major General Andrew Jackson illegally invaded Spanish Florida in search of runaway slaves with the intent of returning them to their “owners” and the Seminoles resisted this invasion of their land. Jackson’s incursion kicked off the First Seminole War and during that conflict, he captured two British men, Alexander George Arbuthnot and Robert C. Ambrister, who were living among the Seminoles. One of the men had written letters supporting the Seminoles’ land and treaty rights and Jackson used this “evidence” to accuse the men of “inciting” the Seminoles to “savage warfare” against the U.S. He quickly convened a “special court martial” tribunal then had the men executed.
Congress at the time condemned Jackson’s illegal war against a nation at peace with the U.S. and his execution of two British citizens, according to court documents. “His actions were a study in flagrant disobedience, gross inequality and premeditated ruthlessness… he swept through Florida, crushed the Indians, executed Arbuthnot and Ambrister, and violated nearly every standard of justice,” historian Bertram Wyatt-Brown wrote in Andrew Jackson’s Honor.
The prosecutors’ comparison of the Seminoles to Al Qaeda provoked strong objections from both the Seminole Nation and the National Congress of American Indians. The NCAI filed an amicus curiae letter objecting to the “distorted offensive historical analogy” comparing the First Seminole War to the terrorism of al Qaeda. “This is an astonishing statement of revisionist history,” NCAI wrote. “The Seminole effort to defend themselves from an invading genocidal army could be termed an ‘unlawful belligerency’ only by the most jingoistic military historian” and “calls into question the reasoning and judgment of those who are representing the government in [Al Bahlul’s] case.” Al Bahlul has appealed his conviction in federal court.
Indigenous opponents of the new defense bill say they have reason to worry about the expanded government powers, particularly the suppression of their free speech in direct actions to protect their lands. They point to the case of four Mapuche men in Chile involved in the struggle for their land rights who were swept up in the country’s Pinochet-era “counter-terrorism” law and sentenced to 20 and 25 years in prison in what appears to be trumped-up charges under the anti-terrorism legislation. “What is happening in Chile isn’t justice; it’s a pantomime, because under the anti-terrorism law, there is absolutely no way justice can be done,” said José Venturelli, spokesman for the European Secretariat of the Ethics Commission against Torture.
Governments have long connected indigenous peoples with terrorists. In 2008, former New York Republican Assemblyman David Townsend, a politician with a long history of opposing Indian sovereignty, attempted to link American Indian nations' tobacco sales to terrorism, targeting the Oneida Indian Nation of New York. Townsend sent a flier to constituents in Oneida and Oswego counties, making the extraordinary claim that "cigarette smuggling rackets originating on New York's Indian reservations are transferring huge sums of money to Middle East terror groups." He cited a report called "Tobacco and Terror: How Cigarette Smuggling is Funding our Enemies Abroad" that purported to connect the sale of untaxed tobacco products on Indian reservations to Hezbollah, Hamas and al-Qaeda, but provided little substantive evidence to support the claim. He asserted that the document was “a report of the United States Congress," but it was prepared by the Republican staff of the U.S. House Committee on Homeland Security as the result of an "investigation" launched by Republican Rep. Peter T. King of Long Island, another anti-Indian—and Islamophobic—legislator. The report cited unnamed sources in unspecified federal and N.Y. state law enforcement agencies who "told the committee that in New York state the smuggling networks rely primarily on access to the Native American Indian reservations for tax-free cigarettes - for obvious financial reasons." In trying to link Indian tobacco sales with international terrorism, neither Townsend nor King were trying to fight terrorism. Their just wanted to force Indians to pay state taxes on the cigarettes they sell on sovereign tribal land.
Libertarian Party Chair Mark Hinkle condemned Democrats and Republicans for “join(ing) hands” to pass the NDAA bill. “This contempt for our rights is outrageous,” Hinkle said in a statement. “Any member of Congress who supports that provision is grossly violating his or her oath to uphold the Constitution. If the president thinks you are a terrorist, let him present charges and evidence to a judge. He has no authority to lock you up without any judicial review, just because he and Congress believe he should have unlimited power. That is the kind of power held by tyrants in totalitarian regimes. It has no place in the United States.”