The winner was a National War College student paper entitled, “The Origins of the American Military Coup of 2012.” Authored by Colonel Charles J. Dunlap, Jr. the paper is a well documented, “darkly imagined excursion into the future.” The ostensibly fictional work is written from the perspective of an imprisoned senior military officer about to be executed for opposing the military takeover of America, a coup accomplished through “legal” means. The essay makes the point that the coup was “the outgrowth of trends visible as far back as 1992,” including “the massive diversion of military forces to civilian uses,” particularly law enforcement.
Dunlap cites what he considered a dangerous precedent, the 1981 Military Cooperation with Civilian Law Enforcement Agencies Act, an act that sanctioned US military engagement with law enforcement in domestic “support operations,” including “civil disturbance” operations. The act codified the lawful status and use of military “assets” in domestic police work.
Encroachment upon Basic Freedoms
Since that time the American people have been subject to a series of deeper and deeper encroachments upon our basic freedoms, increasingly extensive deployment of military operations on the home front, perpetrated by a corporate driven military mission creep that now claims the right and duty to arrest and detain us on the word of a Pentagon or White House operative. President Obama’s signing of the 2012 National Defense Authorization Act (NDAA) whose Section 1021 sanctions the military detention of American citizens without charge, essentially aims to put the last nail in the coffin of our Constitution, our teetering Republic and our most basic democratic traditions.
The statute contains a sweeping worldwide indefinite detention provision. While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration (“you can trust me”) would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations. The White House had threatened to veto an earlier version of the NDAA, but reversed course (of course) shortly before Congress voted on the final bill, which the President signed on the 31st of December 2011, a day that will go down in infamy.
“President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.” According to Senator Dianne Feinstein. “Congress is essentially authorizing the indefinite imprisonment of American citizens, without charge,” she said. “We are not a nation that locks up its citizens without charge.” Think again. (Guardian, 12/14/11)
Under the legislation, suspects can be held without trial “until the end of hostilities.” They will have the right to appear once a year before a committee that will decide if the detention will continue. A spokesperson for Human Rights Watch implied that the signing of such a bill by a President would have once been unthinkable, noting that “the paradigm of the war on terror has advanced so far in people’s minds that this has to appear more normal than it actually is.” Further, “it wasn’t asked for by any of the agencies on the frontlines in the fight against terrorism in the United States. It breaks with over 200 years of tradition in America against using the military in domestic affairs.”
In fact, the heads of several “security agencies,” including the FBI, CIA, the director of national intelligence and the attorney general objected to the legislation. Even some within the Pentagon itself said they were against the bill. No matter, and no matter the intention inherent in lip service opposition, the corporate elite who drive the disastrous and inhumane polices of this country see it otherwise, and they, not the generals or anyone else, call the shots!
And they’ve been at this for some time. A persistent and on-gong counter-insurgency directed against the American people, the detention provisions embedded in the NDAA are about more than “social control.” It amounts to a direct attack on the person, an “unreasonable search and seizure” in the cause of maintaining the shaky capitalist ship of state; suppressing popular resistance, dissent and protest, movements of peace and justice, recast as “civil disorder,” “civil disturbance” and “domestic terror.”
Current U.S. military preparations for suppressing “civil disturbance” and “domestic terrorism” including the training of National Guard troops, local police and the authorization of massive surveillance, are part of a long history of American “internal security” measures dating back to the first American Revolution. Generally, these measures have sought to thwart the aims of social justice movements, embodying the concept, promulgated by elite sectors intent on maintaining their grip on the levers of state; that within the civilian body politic lurks an enemy that one day the military might have to fight; or at least be ordered to fight. (See: Army Surveillance in America, 1775-1980, Joan M. Jensen, Yale University Press, 1991)
Thus, in reaction to a period of social upsurge flush with movements of liberation, justice and peace, and the mounting of powerful campaigns which threatened the status quo and elite control, the US military’s stand alone apparatus for conducting “civil disturbance suppression” operations, including detention, was born, immediately on the heels of the assassination of Dr. Martin Luther King Jr. in April 1968.
The Garden Plot Operation
US Military Civil Disturbance Plan 55-2, code-named Operation Garden Plot, follows, as was mentioned, in the footsteps of a long tradition of US military involvement in the suppression of dissent. Intriguingly, the Garden Plot operation is cited in documents related to the assassination of Dr. Martin Luther King. (See: Orders to Kill: The Truth Behind the Murder of Martin Luther King, William Pepper, Carroll and Graf, 1995)
Currently, the Garden Plot operation is centered at the Pentagon’s Northern Command (USNORTHCOM). “Stood up” in 2002, (though In the works prior to 9/11), NORTHCOM, America’s “domestic military command,” is tasked with various “counter-terror,” “homeland defense” and “homeland security” activities, including “civil disturbance suppression” operations, and “assisting law enforcement” within Canada, the United States and Mexico. http://www.northcom.mil/
Under NORTHCOM, Operation Garden Plot functions, with the US Army as “executive agent,” as “ConPlan 2502.” In two parts, the “con plan” is officially listed as: United States Northern Command, Concept Plan (CONPLAN) 3501 (formerly 2501), Defense Support of Civil Authorities (DSCA), dated 11 April 2006; and the United States Northern Command, Concept Plan 3502 (formerly 2502), Defense Support of Civil Authorities for Civil Disturbance Operations (CDO), 23 January 2007.
As noted above, the latest development in the Pentagon’s evolving mission of suppressing, at the behest of it’s corporate “civilian” overseers, a detention provision, is buried within the massive National Defense Authorization Act (NDAA) of 2012 signed by President Obama in the fog (grog) of this past New Years Eve.
Section 1021 of the NDAA 2012 seemingly allows (the language is evasive) for the detention (without trial or charges) of American citizens redefined by the “executive” elite as “enemy combatants” in the so-called “war on terror, ” a “war” which has become in the eyes of many, a war against the Constitution and civil liberties, a war against the disenchanted, fed-up and dissenting American public, spearheaded by a militarized police state allied to imperial military courts and “tribunals,” buttressed and rationalized with mind-bending mil-speak of “enemy combatants,” “unlawful combatants,” “enemy belligerents,” “homeland battlefield” “domestic extremists” “domestic terrorists” and the like.
And yet, behind all the sophistry, lies and manipulation, the brutal truth is obvious: The corporate elite that directs things has seen fit to unleash it’s military on it’s own people in a desperate attempt to suppress the democratic (read: protest) rights of it’s citizenry, us! Why? Simple: the paranoia of the thief, the well founded fear that knows that forced deprivation and scarcities, violence at home and abroad, rooted in greed, has run it’s course in America. And they are right! And so, it makes ominous sense that we are confronted with the horrific machinations of forced detention for those who resist a “new world order” come home in a “homeland” which opportunistically collapses all distinction between dissent and terrorism, police and military, right and wrong, obfuscating the truth of who the real terrorists are!
When Congress passed the 2012 National Defense Authorization Act (NDAA), it included provisions that authorized U.S. armed forces to detain persons who are captured in the conflict with AL-Qaeda, the Taliban, or “associated forces.” Section 1021 entitled “AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE” allows for the President (whoever that may be) “to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force … to detain covered persons …pending disposition under the law of war.”
“A covered person,” according to the edict’s malleable lingo, is “any person … who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks …” or, 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.”
Accordingly, “the disposition of a person under the law of war” will include “detention under the law of war without trial until the end of the hostilities …” Now, by stating 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 “nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States,” it would appear that the law exempts American citizens from the threat of detention. Correct?
Detention is a booming industry
Don’t be too confident. Detention is a booming industry. In 2006 the Journal of Counter-terrorism & Homeland Security International reported that Halliburton off-spring, “global engineering and technical services powerhouse KBR [Kellogg, Brown & Root] announced in January 2006 that its Government and Infrastructure division was awarded an Indefinite Delivery/Indefinite Quantity (IDIQ) contract to support U.S. Immigration and Customs Enforcement (ICE) facilities in the event of an emergency.” The $385 million dollars over 5 year contract “is to be executed by the U.S. Army Corps of Engineers” building “temporary detention and processing capabilities to augment existing ICE Detention and Removal Operations (DRO) in the event of an emergency influx of immigrants into the U.S., or to support the rapid development of new programs.” Could the 2012 NDAA / Section 1021 be such a “new program?”
There has been some confusion over what Section 1021 actually means, and that in and of itself is cause for concern. Congressional spokespeople have stated that the provisions of NDAA 2012 / Sec 1021 do not provide any “new authority” to detain U.S. citizens or others who may be captured in the United States. Obama waffled likewise in the lead up to his signing the provision. Sen. Carl Levin, chair of the Senate Armed Services Committee, ho-hummed and said that, “we are simply codifying existing law.” But that was an evasion, since existing law, like it or not, regarding the detention of U.S. persons in the “war on terror” is indeterminate in important respects. And “indeterminate” is not good enough!
A recent report from the Congressional Research Service fleshes out the law of detention as set forth in Section 1021, identifying what is known to be true as well as what is unsettled and unresolved. It is perfectly clear, for example, that a U.S. citizen who fights alongside “enemy forces” against the United States on a foreign battlefield could be lawfully detained. This was affirmed by the U.S. Supreme Court in the case Hamdi v. Rumsfeld. http://www.fas.org/sgp/crs/natsec/R42337.pdf
On the other hand, the CRS report explains, “the President’s legal authority to militarily detain terrorist suspects apprehended in the United States has not been definitively settled.” Nor has Congress helped to settle it. “This bill does not endorse either side’s interpretation,” said Sen. Dianne Feinstein, “but leaves it to the courts to decide.”
So, if a detention of a U.S. person does occur, the CRS said, “it will be up to a court to determine Congress’s intent when it enacted the AUMF [the 2001 Authorization to Use Military Force], or alternatively, to decide whether the law as it was subsequently developed by the courts and executive branch sufficiently established that authority for such detention already exists.”
Up to now, “lower courts that have addressed questions the Supreme Court left unanswered have not achieved a consensus on the extent to which Congress has authorized the detention without trial of U.S. persons as ‘enemy combatants,’ and Congress has not so far clarified its intent.”
Well, it is certainly reassuring that a New York court has sought to clarify it’s intent on the matter. On May 16, 2012 a newly appointed federal district judge, Katherine Forrest of the Southern District of New York, issued a ruling, hailed by many, which preliminarily enjoins (prohibits) enforcement of the indefinite detention provisions (Sec 1021) of the NDAA 2012.
The “temporary restraining order” came as a result of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violated both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution. “The government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest said in her ruling. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”
Where it will go from here is anybodies guess. Judge Forrest’s ruling was not permanent. A day after the ruling, the Wall Street Journal, for it’s part, offered it’s sour grapes, pontificating that the ruling “will be overturned on appeal,” while “its reasoning needs to be deconstructed so it doesn’t do more harm in the meantime.” A week later, on the 25th, federal prosecutors from Obama’s Department of Justice, calling Judge Forrest’s ruling “extraordinary,” suggested that she lift the injunction, claiming further that her ruling only effects those plaintiffs named and not other potential or future targets of the draconian legislation.
Well, a few days ago on June 6th the upright Judge Forrest responded with an 8 page, “memorandum and opinion” in which she sought to “eliminate any doubt as to the May 16 order’s scope.” (New York Times, “Detention Provision is Blocked” 6/7/12). And as to whom and for whom her original order was intended: “The May 16th order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court – or by Congress.” That’s clear enough!
So, as it stands now now, although Judge Forrest’s decision may temporarily protect Americans from provision 1021, it remains to be seen what the higher courts do should Obama’s people appeal. And unfortunately, Judge Forrest’s ruling, as praiseworthy as it is, does nothing to spare both foreign reporters and civilians from a life of imprisonment, let alone the more than 6 billion citizens of foreign nations who can still be handcuffed and hauled away to a US military prison without ever being brought to trial.
So, bottom line, given the indeterminate nature of a law that would snatch us up off the streets, throw away the key, and grant us little or no access to a trial let alone legal counsel of choice not vetted by the Pentagon, we should have no illusions that we are well along the slippery indeterminate slope to a full blown militarized police state; the complete identification, coordination and consolidation of the police and military function in America in the interests of an elite who regard us as the enemy, maybe even their property! Maybe even as targets for assassination!
Naked violation of the 4th and 5th Amendments to the US Constitution
We should recall, that the current attempt by the executive to designate American citizens for detention without trial; a naked violation of the 4th and 5th Amendments to the US Constitution against unreasonable search and seizure and the guarantee of a trial, was preceded by the administration’s “resolve” to assassinate at will Americans abroad, place them on a “kill list,” and eliminate them. According to the New York Times “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” (5/29/12) the President and his advisers have made it clear that they have the authority “to order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial.”
The Justice Department’s Office of Legal Counsel rationalized such a move in “a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.” (New York Times, “Secret U.S. Memo Made Legal Case to Kill a Citizen,” 10/8/11) Accordingly, after a dubious period of “internal deliberations,” Mr. Obama gave his approval, and the cleric Anwar al-Awlak was assassinated in September 2011, along with an associate Samir Khan, an American citizen who was not on the target list but happened to be traveling with Mr. al-Awlak. Apparently, campaign rhetoric and public demeanor to the contrary, when asked what surprised him most about Mr. Obama, Mr. Donilon, the national security adviser, answered immediately: “He’s a president who is quite comfortable with the use of force on behalf of the United States.”
The Posse Comitatus Act
How did we get here? We need to recognize that the “massive diversion of military resources” into domestic law enforcement for the purposes of suppressing dissent and worse has a long history, a history that has witnessed the steady evisceration of the 1878 Posse Comitatus Act, the sole federal statute that criminalizes military incursions into the domain of domestic law enforcement. The Act is the backbone of our democratic republican tradition of separating the military and police function in this country and represents the ultimate bulwark against military dictatorship in the interests of the rich. That is the reason it is and continues to be attacked, ridiculed and ignored by elements in both the corporate and military spheres. For example, “Current Obstacles to Fully Preparing Title 10 Forces for Homeland Defense and Civil Support” by Commander James S. Campbell, United States Navy, May 2008 and, “The Role of Federal Military Forces in Domestic Law Enforcement Title” by COL (Ret) John R. Brinkerhoff, December 2004, both seek to delegitimize and undercut the status and importance of the Act, a law so critical to the maintenance of our freedoms, and yet, a law about which most Americans remain unaware.
The 1878 Act, 18 USC § 1385 – USE OF ARMY AND AIR FORCE AS POSSE COMITATUS, more popularly known as The Posse Comitatus Act, reads as follows:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a Posse Comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
As noted, the 1981 Military Cooperation with Law Enforcement law would seemingly violate the spirit if not the letter of this Act. Nonetheless, like a slowly boiling pot relentlessly eating away at our freedom of movement, assembly, association and expression, the utilization of military assets, under cover of law enforcement to suppress our democratic rights has proceeded steadily by design, virtually un-noticed.
Historical milestones: eating away at our freedom of movement, assembly, association and expression
A very limited listing of some historical milestones:
* In 1968, as mentioned above, concurrent with the creation of the Federal Commission on Civil Disorder, better known as the Kerner Commission, the Pentagon hatched it’s very own “civil disorder” operation. “US Military Civil Disturbance Plan 55-2,” code named “Garden Plot,” coordinates, until this day, all aspects of “civil disturbance suppression” in America, including the use of so-called “non-lethal weapons” during conveniently designated domestic “operations other than war” (OOTW), and “military operations in urban terrain” (MOUT), a “war” which pits “non-combatant” citizens and protesters (overwhelmingly non-violent) against militarized police on the streets of America.
* Only a few months after the round up and detention of 7,000 anti-war protesters in Washington DC, imprisoned in RFK stadium, an early Garden Plot operation, the 1971 Non-Detention Act was passed, specifically to repeal portions of the 1950 “anti-communist” “Emergency Detention Act” which had allowed for detention of suspected subversives without the normal Constitutional checks required for imprisonment. The Non-Detention Act required specific Congressional authorization for such detention. It reads that, “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” In recent years, the statute has been used to challenge military detainment of U.S. citizens accused of terrorist activity, as in the case of Jose Padilla.
A Congressional Research Service report on the history of the Non-Detention Act noted that, “legislative debate, committee reports, and the political context of 1971 indicate that when Congress enacted Section 4001(a) it intended the statutory language to restrict all detentions by the executive branch, not merely those by the Attorney General.” Further, “lawmakers, both supporters and opponents of Section 4001(a), recognized that it would restrict the President and military authorities.”
As for the Padilla case, the Supreme Court of the United States originally took the 2004 case of Rumsfeld v. Padilla to decide the question of whether Congress’s Authorization for Use of Military Force (AUMF) authorized the President to detain a U.S. citizen, which would run afoul of the Non Detention Act. But it did not give an answer, instead ruling that the case had been “improperly filed.” And so the issue, as to whether and under what circumstances the military can pick you up, detain and imprison you, without charging you, from the point of view the Supreme Court, remains “unsettled.”
* Also in 1971, the California Specialized Training Institute (CSTI) was created. Headed up by Louis Giuffrida, formerly of Army Combat Command, the first director of the Federal Emergency Management Agency (FEMA), CSTI introduced the Special Weapons And Tactics (SWAT) concept, offering courses on “civil disorder management” for select “militarized” police and National Guard units armed and trained for domestic operations in the urban centers of America. During this period the Law Enforcement Assistance Administration (LEAA) facilitated federal funding and other military largess to the burgeoning militarized sectors of the domestic police forces along with training of selected National Guard units. Still in operation, CSTI is currently headed up by William J. Hatch Colonel, USA (RET), while funding for militarizing local police departments these days is facilitated by the Department of Homeland Security and FEMA, funding which has increased drastically since 9/11.
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