This is the second in a three-part FAQ about the National Defense Authorization Act (NDAA). See Part I: "The NDAA: Another Assault in the Dead of Night" and Part III: "What comes next? The future of the NDAA."
As I concluded in the first part of this FAQ,
[B]elieve the hype: the NDAA’s detention provisions represent a frontal assault on the Bill of Rights. They are noxious now. They will be worse in the future. We will live to regret ever even considering this law, and our leaders will be judged harshly for allowing it to become law without even a single congressional hearing and over the objections of concerned Americans all over the country.
Q: What is the status of the NDAA? A: Still up in the air.
The President did not sign the NDAA before leaving DC for a holiday in Hawaii. His reluctance to sign the bill may indicate some receptivity to a potential veto, despite the failure of the President’s senior advisors to recommend one.
The White House phone lines have been jammed since last week, with callers waiting up to 20 minutes only to be denied the chance to voice their opinion. With the President actively seeking support for his re-election campaign, feedback from voters mounting protests at campaign offices and events may also be helping force his attention.
[Update: the President signed the NDAA into law on December 31, 2011.]
Q: Where is the news media? A: Distracted by the DC spin machine.
An active debate continues over the precise contours of the bill, and the potential reach of the powers it would extend. Apologists--including some members of Congress confused about what they voted for--have offered an artificially narrow analysis of its provisions. But a complete reading of the NDAA, in the context of other existing statutes (particularly the material support statute as amended by the PATRIOT Act and upheld in Humanitarian Law Project v. Holder) reveals the full scope of its dangerous authorities.
Q: How did this happen? A: Obama’s choice to look “forward, not backward.”
Dick Cheney worked the Hill in the days preceding the NDAA votes, and quite likely well before that. Why was he able to leverage his (apparently still overwhelming) influence on Capitol Hill? Because he’s not behind bars, where he belongs.
Even before the Obama administration took office, I wrote about the centrality of executive accountability given the historical moment of the Bush-Obama transition:
[U]ntil Cheney and his minions stand trial, their allies will seek compromises both from within the bureaucracy and on the Hill.
The specter of the Vice President in deserved chains would not only drive neo-conservative hawks & brutes onto their political heels, but would also reaffirm the nation's commitment to the Rule of Law. In contrast, letting Rumsfeld, Cheney, Addington and Haynes enjoy their remaining lives with the respect due merely disgraced former public servants -- rather than the disdain reserved for traitors and war criminals -- sends a message that officials may violate even the most fundamental constitutional rights with impunity. That, in turn, will accelerate the race to the bottom in international standards and further erode human rights principles we once pioneered.
I wish the subsequent history had proven me wrong.
First, our recent record on torture, and more recent failure to prosecute all officials involved in enabling it, undermines the legacy of international human rights we established after the Second World War. Second, after vindicating freedom, liberty, and individual privacy in the Cold War, we now dutifully submit to a surveillance state more intrusive than any that has ever existed in human history.
In other words, Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama's aim to "look forward, not backward," may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.
The NDAA's detention provisions passed Congress only because neo-con figureheads (e.g., Cheney, Addington, Bybee, Yoo) evaded the investigation and prosecution required under international law for their crimes against humanity. When architects of human rights abuses receive continued power & prestige, rather than prison sentences (to which the rest of us remain subject for vastly less heinous crimes), their continued influence is predictable. And fear mongering apparently still sells, at least among timid members of Congress eager to appear muscular to voters.
Q: Torture? I thought we were done with that. A: Think again, and mark my words….
Our failure to hold senior executives (or, for that matter, anyone beyond the least influential footsoliders) accountable for torture not only helps explain the origins of the NDAA, but also explains why the regime it enshrines could be so dangerous.
In Part 1 of this series, I explained how the PATRIOT Act’s material support provisions could influence the future use of the NDAA, by expanding its scope to include non-violent political dissent. The regime created by Obama to excuse torture under Bush & Cheney -- in which there are no penalties for committing human rights abuses -- also points to further ways the dreadful powers enshrined in the NDAA could be abused in the future.
Torture is more than merely a human rights abuse. It’s a way to coerce confessions, even if they’re false. That’s why observers from military interrogators to Republican Senators and other former senior government officials have rejected it as a useless, if not counter-productive, tactic when applied to enemy combatants.
But what if the goal of torture is not to ascertain intelligence, but rather to produce confessions? In a system of preventive detention, in which torture is available to future administrations (or poorly trained 18 year-olds) as an option, what will constrain torture from recurring? Even with a policy discouraging torture, the established lack of accountability ensures its inevitable recurrence.
And when torture recurs, there will be no meaningful possibility of ever finding detainees innocent. When people (whether US citizens or not) in military custody start declaring confessions, few observors will care whether or not they were coerced. “They must have done something wrong. They did confess, after all.”
Nothing to see here. Move along….
Q: Is it too late to stop this? What can we do? A: The antidote to despair is action.
The NDAA has not yet been signed by the President. It’s never too late to raise your voice, but now is especially opportune. Beyond calling the White House and sending messages to your elected officials, grassroots events (of the sort that happened all over the country earlier this month) also offer a vital chance to spark a local conversation with your friends & neighbors.
This series concludes with What Comes Next? The Future of the NDAA.
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ICYMI this oldie but goodie: #SCOTUS #Justice warns of internment (mass detention) happening again t.co/hsajuKLyJf
Join @Sheeyahshee & @Blackstarjus at #SLULAW on Thursday. Can police body cameras help #BlackLivesMatter? t.co/wsvWwcyGhc
UN -- led by Brazil and Germany -- endorses Special Rapporteur for #privacy vs #spying: t.co/gzVPtd7QtE