A recent decision by the Obama administration to consider a drone strike against a US citizen and perceived “terrorist” brings the conflict of executive authority and civil and constitutional rights back in the spotlight as local resistance to the NDAA is spreading across the country.
On February 10, 2014, The Associated Press reported that the Obama administration was considering a drone strike against an American citizen, who – officials say – is a terrorism threat to the United States. This story has brought the Authorization for Use of Military Force (AUMF) and its legal implications back into the limelight.
Author and activist David Swanson recently raised the question of the difference between “legality” and “policy”: “Under the US Constitution, the laws of the nations in which drone murders take place, treaties to which the US is party, international law and US statutory law, murdering people remains illegal, despite being policy, just as it was illegal under the less strict policy of some months back.”
Last May, Obama changed his overseas drone policy to shift control of the weapons from the CIA to the Department of Defense. This means that American citizens suspected of posing a terror threat can be bombed by the military only and not the CIA, which puts the onus on the DOJ to prove the person can be classified an “enemy combatant.”
Marjorie Cohn, a professor at Thomas Jefferson School of Law, says there is an administrative procedure to decide whether someone is an enemy combatant. Once someone is designated as such, he or she can file a petition for writ of habeas corpus in the federal district court to prove he or she is innocent of any terrorist connections and that court could release the individual. “But this rarely happens,” she said.
In a fact sheet released by the White House last year, the policy, as it applies to American citizens, is explained:
If the United States considers an operation against a terrorist identified as a US person, the Department of Justice will conduct an additional legal analysis to ensure that such action may be conducted against the individual consistent with the Constitution and laws of the United States.
Yet directly after this, the statement reads: “These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies.”
In a press release responding to the AP report, Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, said:
The government’s killing program has gone far beyond what the law permits, and it is based on secret evidence and legal interpretations. The targeted killing of an American being considered right now shows the inherent danger of a killing program based on vague and shifting legal standards, which has made it disturbingly easy for the government to operate outside the law.
The implications of the Obama administration’s recent deliberation can be applied to a broader context when examined through the lens of the 2012 National Defense Authorization Act (NDAA), which allows the US military to detain any American citizen it deems a terrorism suspect. But are there any real assurances that American citizens’ constitutional rights will be respected?
Hedges v. Obama
In January 2012, a group of journalists, activists and academics, including Chris Hedges, Noam Chomsky and Daniel Ellsberg, filed a lawsuit challenging the constitutionality of the NDAA.
Opponents of the NDAA claimed a victory in 2012 when US District Judge Katherine B. Forrest of the Southern District of New York declared Section 1021 of the NDAA unconstitutional. Forrest said the language of the provision, which allows for indefinite detention without trial, was too vague and that it could possibly violate citizens’ First Amendment rights.
The White House immediately appealed Forrest’s decision. And in July 2013, the US Court of Appeals for the Second Circuit ruled 3-0 that the American co-plaintiffs could not challenge the NDAA because they lacked standing.
On February 6, 2014, the New Hampshire state House of Representatives approved HB 1279, which states, “This bill prohibits the state, political subdivisions, and the national guard from participating in enforcement of the counterterrorism detainment provisions of the 2012 National Defense Authorization Act.” The bill will next be considered by the Federal Relations and Veterans Affairs committee of the state Senate and is slated to take effect January 1, 2015.
Other states have introduced similar legislation, such as Montana’s HB 522, which was vetoed by Gov. Steve Bullock in April 2013. Hawaii formally has opposed indefinite detention, while Virginia codified state noncompliance with federal agents by passing HB 1160 in April 2012. In fact, 2012 saw a flurry of states introducing bills in opposition to the NDAA.
While the plaintiffs to the Hedges v. Obama suit hail from the left wing of the political sphere and opposition to the statute is often considered a progressive issue, grassroots opposition comes from across the political spectrum.
Activists and lawmakers have used the legislative approach to voice their opposition to the NDAA, but Dan Johnson, founder and national director of People Against the NDAA (PANDA), says a grassroots approach is more effective.
Local resistance to the NDAA has been emerging around the country. In October 2013, the common council of Albany, New York, unanimously passed Resolution 80.92.13, which states in part:
NOW, THEREFORE, BE IT RESOLVED, that the Common Council of the City of Albany acting in the spirit and history of our community, does hereby declare that we:
– Strongly affirm our loyalty to the rights and liberties enshrined within the Constitution of the United States, including the Fifth Amendment right to due process and the Sixth Amendment right to trial;
– Recognize that the City of Albany is not a “battlefield,” and its citizens and constitutionally-protected persons are not currently subject to “detention under the law of war”;
– Expect all federal and state law enforcement officials acting within the City of Albany to work in accordance with the Constitution of the United States, and in cooperation with the Albany Police Department, by assuring that any person subject to detention be afforded access to a trial, counsel and due process, including under the Fourth, Fifth, and Sixth Amendments to the Constitution and Article III thereof;
Oxford, Massachusetts, resident Marla Zeneski headed the efforts in her community to put the resolution on the Special Town Meeting warrant. She gathered the required signatures and created an informational video that played on the town’s public access channel in the weeks before the resolution went up for the citizens’ vote, which passed with 95 percent of residents in favor.
Zeneski said that a year prior to the resolution vote, members of the Occupy movement, the Tea Party movement and the local ACLU locked arms in protest of the NDAA law at a demonstration in Worcester, Massachusetts.
“As you know, this is a completely nonpartisan issue,” Zeneski said. “I heard Benjamin Selecky, the head of PANDA Massachusetts, speak at a Tea Party meeting. He spoke passionately about the NDAA, sections 1021 and 1022 and what it meant for Americans. He was very informative. And when he asked who would go forward and take back their town, my hand shot up!”
A Three-Pronged Strategy
“Who’s more likely to defend civil rights – a Fed in Washington or a police officer in your local town?” asks PANDA national Director Dan Johnson. His organization’s mission is to oppose “the NDAA, indefinite detention without charge or trial, and the application of the laws of war to US soil and American citizens.”
Johnson says the advantage of the grassroots approach is that representatives (city council, police) are closer to the people and thus can be held accountable more easily.
The group’s strategy is threefold. First, Johnson says, a community must put into writing what can’t and shouldn’t happen in a local area, effectively blocking the application of the “laws of war” in that city.* The resolution PANDA outlines states two things: That the NDAA was null and void from the start, and that because the NDAA authorizes the indefinite detention of any person in the United States without a charge or a trial – violating constitutional rights – any attempt by the government to utilize the NDAA in this jurisdiction will be considered kidnapping.
Johnson says that if a community has ruled an action (such as military detainment) illegal and unconstitutional within its jurisdiction, any federal official who attempts to detain a citizen in that town under the NDAA will be viewed as an individual in violation of local law and will be considered a kidnapper. The official would be prosecuted as an individual and would not be protected by the authority of the person’s federal office.
Johnson says that when a community adopts a resolution, it allows the local district attorney to prosecute an individual who violates the ordinance. If federal officials attempted to come into that city to detain someone, they’d have to provide a warrant or a notice of a warrant to the local police department.
The next step in PANDA’s strategy is to approach the community’s local police department or sheriff’s office to urge officers to uphold their oath to the Constitution. The organization has outlined a resolution for law enforcement, which states that no one employed by the sheriff’s office will support, in any way shape or form, the enforcement of the NDAA and that anyone employed by the sheriff’s office will step in against the federal government if it or one of its agents attempts to enforce the NDAA in that county.
Oxford police Chief Michael Hassett declined to give a formal statement on how the town’s police would enforce the resolution but said that if a bylaw is passed in his jurisdiction, he will uphold it.
Johnson says it is up to every official who takes an oath to the Constitution to protect those rights. The officer must interpose if he or she determines a law is unconstitutional. Therefore, only a person who takes an oath has the authority to determine the constitutionality of a law, Johnson says. The decision of whether to enforce or not enforce something falls to the individual officer, but Johnson says that the resolution should be added to the police department’s policy handbook to be available for all officers.
Johnson says that citizens must be ever-vigilant, and the third step in the strategy is to develop a citizens’ watch in the community to provide an apparatus for concerned citizens to sound an “alarm system” if they believe the resolution is being violated. He says the citizens’ watch will allow residents to hold officials and law enforcement accountable; if police assist in violating the community’s resolution or turn a blind eye to it, it would be “political suicide” and officers could even be prosecuted.
Johnson says the reaction to PANDA’s “Take Back Our Cities” grassroots campaign has been mostly supportive, but the group has met some resistance. When the Restoring Constitutional Governance resolution came up for a vote by the board of selectmen in Northbridge, Massachusetts, the finance committee opposed adopting the measure. Finance Committee Chairman Salvatore D. D’Amato Jr. explained his opposition by saying that the NDAA was necessary to protect American citizens at home.
Johnson says that since the movement opposing the NDAA is decentralized, it is hard to estimate how many cities are actively working on the issue. But Johnson estimates around 60 cities are pushing PANDA-endorsed resolutions.
*The Center for Constitutional Rights points out: “The NDAA allows for detention until the ‘end of hostilities,’ which in the context of a so-called global war on terror, could mean forever. And those held in indefinite detention are not necessarily afforded the fundamental rights which many take for granted in the US, including the right to counsel, to a trial, to confront one’s accusers, etc.”
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