Court upholds NDAA; stay extended on indefinite detention injunction

 

Protesters wearing orange prison jump suits and black hoods on their heads march during a protest against holding detainees at the military prison in Guantanamo Bay during a demonstration in front of the US Supreme Court in Washington (AFP Photo)

Source: Russia Today

http://rt.com/usa/news/appeals-ndaa-detention-public-536/

­A federal appeals court has extended a stay on the injunction blocking the notorious indefinite detention provision in the 2012 defense bill that lets the US government jail any American without end over even suspected terrorist ties.

This comes as attorneys for the White House fight to lift the order imposed by a federal judge last month that made permanent an injunction on a statute of the National Defense Authorization Act, or NDAA. On Tuesday, an appeals panel weighed in to offer the latest installment in the Hedges v Obama saga and agreed to side with the White House.

President Barack Obama signed the NDAA into law late last year, and the now infamous provision that allows for indefinite detention of US citizens without trial — Section 1021 — was challenged in court shortly thereafter by a team of plaintiffs led by former New York Times journalist Chris Hedges.

The Obama administration insists that the indefinite detention provisions of the legislation are necessary for the safety and security of the nation, a claim that Hedges and his colleagues have condemned whole-heartedly in the ten months since the NDA went on the books. Journalists and human rights activists insist that Section 1021 actually allows the government to label any American citizen as a suspected terrorist and then treat them accordingly.

"We conclude that the public interest weighs in favor of granting the government's motion for a stay," Appeals Court Judges Denny Chin, Raymond Lohier and Christopher Droney — all appointed by President Obama — wrote in a three-page order that also expedited the appeal. POLITICO obtained the motion on Tuesday (.pdf).

“Upon due consideration, it is hereby ORDERED that the government's motion is GRANTED.”

The order by appeals court comes after Judge Lohier temporarily blocked Judge Forrest’s decision, using a so-called administrative stay on September 17.

The appeals court judges argue against the fears of Hedges and his co-plaintiffs, decision that in its motion the US government “clarifies unequivocally that, 'based on their stated activities,' plaintiffs, 'journalists and activists[,] . . . are in no danger whatsoever of ever being captured and detained by the US military.’”

They also stated, “the statute does not affect the existing rights of United States citizens or other individuals arrested in the United States.”

In May, Judge Forrest ruled Section 1021 of the NDAA failed to “pass constitutional muster” and ordered a temporary injunction.

In its original form, the NDAA allows the military hold anyone accused of having "substantially supported" al-Qaeda, the Taliban or "associated forces" until "the end of hostilities” and indefinitely imprison anyone who commits a “belligerent act” against the United States, yet fails to explicitly define what is constituted as such. In her injunction, Judge Forrest said, "In the face of what could be indeterminate military detention, due process requires more.”

"An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” Judge Forrest ruled.

During both a question-and-answer session on Reddit.com last week and during a recent appearance at a Bradley Manning fundraiser in Washington, Mr. Hedges expressed fear over his personal assumption that the Obama administration is already using the NDAA to hold Americans without trial. Because of the White House’s relentless legal fight to keep Section 1021 on the books, Hedges say, he fears that American-Pakistani dual-citizens could already be behind bars without charge.

Plaintiffs and their attorneys say they intend on taking the case to the Supreme Court.

 

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White House doesnt address privacy concerns in cybersecurity executive order draft

 

Reuters / Lucas Jackson

Source: Russia Today

http://rt.com/usa/news/cybersecurity-executive-order-sharing-362/

A copy of the cybersecurity executive order currently being written by the Obama administration has been leaked to the Web, and the contents do little to calm the fears of those who suspected their privacy concerns wouldn’t be considered.

Only days after journalists with both Federal News Radio and TechDirt.com claimed to have come into possession with a copy of a cybersecurity executive order being readied by the White House, a draft assumed to be authored for the president has been leaked, and in it the Obama administration lays down the groundwork for interim cybersecurity measures following Congress’ failure to come to agreement on legislation of their own. But while the alleged executive order does not discuss the specifics of what the White House has in mind for protecting the country’s e-grid, it also fails to provide any safe guards for making sure that any sharing of personal information does not raise privacy concerns or cause any civil rights violations.

“It is therefore essential that a mutually beneficial arrangement for public-private collaboration be further developed,” the introduction of the draft declares. Over the course of the 18 pages that follow, the Obama administration authors repeatedly remark about the necessity for streamlining the sharing of information held by private sector companies with the federal government. Nowhere, however, has the White House explained how it plans to protect the rights of Americans.

Under earlier cyber legislation considered by Congress, private-sector entities, including businesses and telecom providers, would be offered federal incentives for openly providing the government with personal details offered up by their customers — the American public. Although the leaked copy does not describe any specific-handouts, it heavy handedly avoids explaining anything that will be done to handle the privacy concerns that were caused by earlier attempts at cyber bills.

In one excerpt of the draft, the establishment of a “risk management framework” is discussed, explaining it as something that would “facilitate streamlined collaboration and information sharing mechanisms,” as well as “address interdependencies among critical infrastructure sectors.”

“Because the majority of the Nation’s crucial infrastructure is owned and operated by the private sector, efforts to strengthen and maintain secure, functioning and resilient critical infrastructure required effective and routine collaboration and information exchange between all levels of government and critical infrastructure owners and operators,” it continues.

Elsewhere in the draft, “information sharing”between private and federal entities is considered imperative and a call to arms it made to “facilitate an optimization of resources to advance our collective ability to act when a threat is present or an incident occurs.” Not only does the vague wordage included in the draft leave the possibility of information collection and sharing open-ended, but suggests that this act is only the starting point of what sort of cyber-sharing protocols are yet to be put to use.

The draft, according to the copy released by TechDirt, also calls for the establishment of a “24/7 situational awareness and crisis monitor” system managed by the US Department of Homeland Security, which will “facilitate information sharing, interaction and collaboration among and between SSAs and other Federal department agencies, critical infrastructure, owners and operators and international partners.” In another section, the White House rallies for a National Cybersecurity Center to exist with “the ability to enable and support situational awareness and a common operating picture for cyberspace across private sector, Federal, SLTT and international entities y integrating information obtained from such entities and providing cyber information to support the Secretary of Homeland Security.”

The process, writes the White House, will include “an institutionalized capability to facilitate information sharing.” Nowhere, though, do they discuss how they will facilitate the civil liberties concerns raised by the sharing of sensitive intelligence.

Although the White House has not yet weighed in on the authenticity of the alleged draft, the Obama administration does admit to be at work on readying a copy for release.

"Following congressional inaction, the President is determined to use existing executive branch authorities to protect our nation against cyber threats," National Security Adviser John Brennan confirmed in a letter sent from the White House on Friday. "Specifically, we are exploring an Executive Order to direct executive branch departments and agencies to secure our nation's critical infrastructure by working with the private sector."

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White House demands military prisons for Americans under NDAA

 

The White House Logo.(Reuters / Adrees Latif)

Source: Russia Today

http://rt.com/usa/news/ndaa-hedges-appeal-obama-339/

The White House has asked the US Second Circuit Court of Appeals to place an emergency stay on a ruling made last week by a federal judge so that the president’s power to indefinitely detain Americans without charge is reaffirmed immediately.

On Wednesday, September 12, US District Court Judge Katherine Forrest made permanent a temporary injunction she issued in May that bars the federal government from abiding by the indefinite detention provision in the National Defense Authorization Act for Fiscal Year 2012, or NDAA. Judge Forrest ruled that a clause that gives the government the power to arrest US citizens suspected of maintaining alliances with terrorists and hold them without due process violated the Constitution and that the White House would be stripped of that ability immediately.

Only hours after Judge Forrest issued last week’s ruling, the Obama administration threatened to appeal the decision, and on Monday morning they followed through.

At around 9 a.m. Monday, September 17, the White House filed an emergency stay in federal appeals court in an effort to have the Second Circuit strip away Judge Forrest’s ruling from the week earlier.

“Almost immediately after Judge Forrest ruled, the Obama administration challenged the decision,” writes Chris Hedges, a Pulitzer Prize-winning journalist that is listed as the lead plaintiff in the case. According to Hedges, the government called Judge Forrest’s most recent ruling an “extraordinary injunction of worldwide scope,” and Executive Branch attorneys worked into the weekend to find a way to file their stay.

“The Justice Department sent a letter to Forrest and the Second Circuit late Friday night informing them that at 9 a.m. Monday the Obama administration would ask the Second Circuit for an emergency stay that would lift Forrest’s injunction,” Hedges writes. “This would allow Obama to continue to operate with indefinite detention authority until a formal appeal was heard. The government’s decision has triggered a constitutional showdown between the president and the judiciary.”

Attorney Carl Mayer, a counsel for Hedges and his co-plaintiffs, confirmed to RT early Monday that the stay was in fact filed with the Second Circuit.

“This may be the most significant constitutional standoff since the Pentagon Papers case,” Carl Mayer says in a separate statement posted on Mr. Hedge’s blog.

Bruce Afran, who serves as co-lead counsel along with Mayer, tells Hedges that the White House could be waging a war against the injunction to ensure that the Obama administration has ample time to turn the NDAA against any protesters participating in domestic demonstrations.

“A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the US and saying that DHS is looking for the Islamic leaders of these likely riots,” Afran tells Hedges. “It is my view that this is why the government wants to reopen the NDAA — so it has a tool to round up would-be Islamic protesters before they can launch any protest, violent or otherwise. Right now there are no legal tools to arrest would-be protesters. The NDAA would give the government such power. Since the request to vacate the injunction only comes about on the day of the riots, and following the DHS bulletin, it seems to me that the two are connected. The government wants to reopen the NDAA injunction so that they can use it to block protests.”

Hedges, who has previously reported for papers including the New York Times and the Christian Science Monitor, argued that his job as a journalist requires him to routinely interact and converse with persons that may be considered terrorists in the eyes of the US government.

Under the NDAA, Americans “who was 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" can be held in prison cells “until the end of hostilities,” vague verbiage that essentially allows for those suspect of such associations to be decided under the discretion of US President Barack Obama or any federal agent underneath him.

“Because the language is so vague in this law,” Mr. Mayer explains to RT, “if any journalist or activist is seen as reporting or offering opinions about groups that could somehow be linked not just to al-Qaeda but to any opponent of the United States or even opponents of our allies”

“I spent many years in countries where the military had the power to arrest and detain citizens without charge,” Hedges wrote when he first filed his suit in January. “I have been in some of these jails. I have friends and colleagues who have ‘disappeared’ into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.”

Monday morning, Hedges once more responded to the White House’s relentless attempts to reauthorize powers granted under the NDAA, asking, “If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future?”

“The decision to vigorously fight Forrest’s ruling is a further example of the Obama White House’s steady and relentless assault against civil liberties, an assault that is more severe than that carried out by George W. Bush,” writes Hedges. “Obama has refused to restore habeas corpus. He supports the FISA Amendment Act, which retroactively makes legal what under our Constitution has traditionally been illegal — warrantless wire tapping, eavesdropping and monitoring directed against US citizens. He has used the Espionage Act six times against whistle-blowers who have exposed government crimes, including war crimes, to the public. He interprets the 2001 Authorization to Use Military Force Act as giving him the authority to assassinate US citizens, as he did the cleric Anwar al-Awlaki. And now he wants the right to use the armed forces to throw U.S. citizens into military prisons, where they will have no right to a trial and no defined length of detention.”

In his latest blog post, Hedges acknowledges, “The government has now lost four times in a litigation that has gone on almost nine months.”

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