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Wednesday, February 14, 2018

Just in from ABATE of Arizona

Just in from ABATE of Arizona - Very disappointing. Say what you want about the challenges with getting a profiling bill passed...APATHY within our own community is our biggest enemy. This will NOT happen here in CA!
I have some very bad news.
HM2001 motorcycle awareness; profiling; prevention bill will not be heard in committee. With only 90 signatures on the petition and only 7 signed into the RTS system, I have very limited support to go to the Speaker of the House or the Committee Chairman to persuade them to make sure the bill is heard.
I did speak to Speaker of the House Mesnard and he did assign it to committee like I asked but it is the committee chairman Eddie Farnsworth who has allowed it to die.
I spoke to the bill sponsors and other Representatives, both Democrat and Republican, who are in support of this. I have met with Maricopa County Sheriff’s Office and Phoenix PD to discuss this. This is the language that law enforcement can support. It is not a “You have to do this” type of bill. It’s a suggestion that law enforcement and motorcyclists work together to fix the problem. It’s obvious that Representative Farnsworth, who says he rides a motorcycle, does not see this as an issue.
I asked for all of ABATE and other mro’s to sign the petition. I’ve asked for all to get on the RTS system and record your position on this. Both take less than 2 minutes each.
I do appreciate those who sent emails, signed the petition and on the RTS system. And especially those who made phone calls to Representative Farnsworth’s office.
But, without the support of the motorcycle community, there is nothing else I can do.
I’m sorry for those who will continue to be profiled. I will continue to fight for our rights. Even if others don’t care.
Mike Infanzon
ABATE of Arizona, State Lobbyist

For Immediate Release - WHAT ABOUT US? Why the Bikers of America Cannot Continue to be Ignored or Forgotten


For Immediate Release
February 13, 2018
Why the Bikers of America Cannot Continue to be Ignored or Forgotten
I’ve held the position of Vice-President of Government Affairs for the Motorcycle Riders Foundation for roughly 18 months. And during those months I’ve sat in countless meetings, congressional hearings, public information sessions, symposiums, conferences and breakout sessions which have covered a gamut of issues that affect riders. Anything and everything from ethanol to self-driving cars to road design and infrastructure, I’ve sat, listened and taken detailed notes. However, during the last couple of months I’ve started to uncover
a deeper (and darker) underlying message in my meetings. I’m not one for conspiracy theories so I won’t suggest that my theory is the product of some sort of anti-motorcycle secret society, but what I am beginning to believe is that the future of riders – our future – is questionable.
I say this because as I’ve sat through these meetings and conference calls, my takeaway increasingly becomes that the U.S. population at large, just doesn’t give a shit about motorcycles. We’re ignored or perhaps forgotten. We’re relegated to the category of recreation. And dangerous recreation at that. We’re swept into the same column as shark cage diving, or bull running or cliff base jumping. And though I have no problem with any of those recreational activities, riding motorcycles is not the same. It’s not even CLOSE to the same! Though many of us ride for the fun and the thrill of it, our bikes also get us from place to place. Unlike swimming with the sharks or running with the bulls, riding a motorcycle is a form of transportation. Motorcycles get us to work, to the post office, to the dentist. So why, in America of all places, are we forced to say again and again and again, what about us?
There is surprisingly little research done about the benefits of riding motorcycles. And I am not talking about benefits to the rider. You ask any one of our MRF members and they’ll tell you that riding is cheaper than seeing a psychiatrist. So lets put that aside for a minute and talk about the benefits to society. In Europe several years ago, there was a study done to test mobility – that is moving from point A to point B. They looked at commuting routes from outside major cities and within major cities as well as rural areas over varying distances and compared the mobility of a motorcycle to that of a car. And out of the fourteen tests they conducted to measure mobility, the motorcycle won 85% of the time. So in other words, a motorcycle is more likely to get you to your destination faster (and not just because you’re speeding).
The impacts go on from there. Another study (also in Europe where motorcycles are better viewed and accepted as a legitimate form of transportation) showed the impact of what might happen if just 10% of cars were replaced by motorcycles. Time loss for all vehicles would decrease by 40%. That means a quicker commute for everyone whether they are on a motorcycle or not. And with less cars on the road and less sitting in traffic, that means an impact on emissions. Though I have not uncovered a comprehensive study on the specific issue of reduced emissions and motorcycle usage, a case study by Transport & Mobility Leuven (yep, Europe again) stated that, “New motorcycles emit fewer pollutants compared to average privat
e cars (less NOX, NO2, PM2.5 and EC, but more VOC). They also emit less CO2. Total external emission costs of new motorcycles are more than 20% lower than average private cars. On the section of motorway between Leuven and Brussels, total emission costs can be reduced by 6% if 10% of private cars are replaced by motorcycles.”
There are other benefits too. Things like fuel efficiency; most bikes get as many miles per gallon as a car if not much more. What about infrastructure? Right now, the Trump Administration is currently figuring out how to raise $200 billion to upgrade our nation’s infrastructure which is in dire shape in some parts of the country. What
may have helped our nations’ crumbing infrastructure? A motorcycle’s lighter touch could mean less wear and tear on a bridge or a road than a heavier, wider-set vehicle.
Given all the aforementioned benefits, you’d think I’d hear some praise from non-riders. Instead, I hear a lot about noise pollution. And that’s when they even talk about motorcycles. In many cases, they aren’t. Take the National Highway Traffic Safety Administration (NHTSA); when they put out their initial guidance on autonomous vehicles and potential policies and safety factors, motorcycles weren’t even mentioned. They revised the document a year later, and though they did mention motorcycles, it was in the context of what vehicles NHTSA has jurisdiction over. Where it was blindingly not was in the section that has to do with the ability of this technology to identify and respond to objects on the road. Interestingly, the guidance names cars, trucks, pedestrians, bicyclists and animals. But not motorcycles. 
Another instance of riders being forgotten (or ignored)? The newly minted U.S. version of Vision Zero, called Road to Zero. It’s a program with an admirable goal – to completely eliminate deaths on our nation’s highways in 20 years. The program spends very little time or resources on motorcycle and related issues in every meeting I’ve attended. Even the logo can’t be bothered to contain a motorcycle rider.
It is estimated that there are more than 300 million powered two-wheelers in the world. These are substantial numbers, so when it comes being viewed as a legitimate form of transportation, why are riders having to fight for a seat at the table? And an even bigger question is how we can change this dynamic? I don’t have the answers, but I bet if enough of us put our heads together we can start to chip away at the problem targeting not just society as a whole, but the different segments that contribute to this pervasive problem. From policymakers to media to public interest groups and everyone in between, we need to make sure that riders everywhere, regardless of what patch you hold or bike you ride, deliver the message that motorcycles have a place in the future.  

Megan Ekstrom
Vice-President of Government Affairs & Public Relations
The Motorcycle Riders Foundation
About Motorcycle Riders Foundation
The Motorcycle Riders Foundation (MRF) provides leadership at the federal level for states’ motorcyclists’ rights organizations as well as motorcycle clubs and individual riders. The MRF is chiefly concerned with issues at the national and international levels that impact the freedom and safety of American street motorcyclists. The MRF is committed to being a national advocate for the advancement of motorcycling and its associated lifestyle and works in conjunction with its partners to help educate elected officials and policymakers in Washington and beyond.

Tuesday, February 13, 2018




IN MY OPINION: By W.T. “RoadBlock” Harrell

PART ONE: The Good

We are doing the same thing the government does to us by lumping all cops into a bad cop category. This is a serious mistake that makes it almost impossible to bring about any changes. I hope these articles, Part One and Two will give you something to think about. I welcome your thoughts and comments.
After serving thirty years in prison, many people assume I hate cops. Cops dictated if I could leave my cell, if I could receive medical care, when I ate, what I wore, what I could say to them without getting my cell tossed –24/7 for thirty long years. Did I like it? Not hardly.
Since coming home five years ago, I have to answer to my parole officer. He makes surprise visits to my home, and monitors both personal and business activities and records. Do I like it? No, but it’s his job, and we both know the rules.
My book-signing events take me many places. I’ve met and talked with a lot of local, state and federal police officers. Many are unhappy with the way things are going in America for all of us. Do I like it? Hell yeah, it’s great to finally have open discussions, with concerned uniform and street cops to old-school prison guards, about issues that concern us and our families and country.
And of course, our main topic is about law enforcement going to hell.
OldCopsGOOD COPS: I believe there are many cops who do their best to uphold the traditional standards of law enforcement in a professional and constitutional manner. They’re respectful to lames, liars and John Q Citizen alike, have tremendous patience, and can diffuse a dangerous situation without a tank or riot gun.
As history has proven, these “good” cops catch shit rolling downhill. Treating the public with ethics and common sense goes against directives from the upper echelon, who crave sensational media stories to further their political goals. “Look, we are ‘Tough On Crime’, we just blew that drug house apart with everyone in it! One of them had an illegal marijuana flake or seed in his pocket. Vote for me, I will keep you safe!”
Faced with little support all the way up the food chain, however, bucking the system means losing promotions, friendships and possibly careers. Superiors no longer consider the good cop a “team player,” which is ironic, because a good street cop is usually an independent person capable of making good decisions without any help from a politician.
Some places are worse than others. Daytona Beach LE relishes their reputation for harassing tourists, especially during biker events. Yes, the ill will and ticket gouging adversely impacts commerce for local businesses, but the police chief isn’t shy  about his political goals being more important than the community coffers.
(Daytona welcomes Bikers?  Since when?)
(Daytona welcomes Bikers? Since when?)
In fact, he has publicly stated that motorcycle clubs are not welcome in Daytona because “they are nothing more than criminals and domestic terrorists.” I’m not sure how the Bikers for Jesus and veterans clubs feel about that.
By contrast, Panama City Beach welcomes people to Spring Break and biker events. The cops I’ve seen there handled visitors with common sense and courtesy, maintaining public safety while recognizing the attendees are there to have fun.
In any town, a seasoned street cop knows his clientele: the petty criminals who’ll never learn, a stranger who sets off all his sixth sense alarms, or a kid egged into something stupid by friends. From experience, those officers know how to handle each situation.
OfficerAndKidThese police officers have my respect and should have the respect of everyone. Without them, our society would descend rapidly into total lawlessness, where only those with no conscience will survive. I believe the good cops live by the oaths they took when they were sworn in as Police Officers.
“I do solemnly swear to uphold, defend and protect the U.S. Constitution against all enemies both foreign and domestic.”
“On my honor, I will never betray my badge, my integrity, my character, or the public trust. I will always have the courage to hold myself and others accountable for our actions. I will always uphold the Constitution, my community and the agency I serve.”
Conclusion: Some of the police officers I have spoken with tell me they need the help of citizens to get Law Enforcement back in the hands of professional cops (as opposed to military trained killers). How? Well, do bikers appreciate getting lumped into one category by glory-hounds like Chief Chitwood? Exactly. So why would any decent law enforcement officer appreciate comparisons to a rogue cop who beat and brutally sodomized a handcuffed nonviolent offender? Or a military force posing as law enforcement
As hard as it is, we have to rearrange our own thinking. Not every squad car means grab the kids and the dogs and head for the bomb shelter. Not every blue light means an instant ticket. When you start to rage against all cops in general, think about a world without them between your family and the sociopaths waiting in the dark. If nothing else, consider they may be in the majority of officers that aren’t scared shitless of dogs, and save yours instead of shooting it.
If I can learn to have a reasonable conversation with a few, so can you. Sometimes you learn something very valuable, that just like us not all cops are the same.

RoadBlock 1%er

Note:  The way I looked at my personal experience with cops back in the old days? Their job as law enforcement officers was to put me in jail if I broke the law. On the other hand, my job was to not let them catch me violating the law. They had their job, and I had mine. Guess what? Fifty years later, after all that bullshit, we’re not keeping score. We’re all just glad to wake up one more day.

Monday, February 12, 2018

Dear Americans: This Law Makes It Possible To Arrest And Jail You Indefinitely Anytime

his is part one of a three part series on the indefinite detention provisions of the NDAA

Dear Americans: This Law Makes It Possible To Arrest And Jail You Indefinitely Anytime

Terrorism may not be the worst threat to freedom that we face.

09/02/2016 02:25 pm ET Updated Sep 27, 2016
The frightening implications of the National Defense Authorization Act (NDAA)
In 2014 alone, terrorism killed nearly 30,000 men, women and children. As horrible as this is, terrorism may not be the worst threat to freedom that we face. The real threat is how quickly we Americans have given our government carte blanche to fight the War on Terror. This has already caused far greater damage to our civil liberties than the terrorists themselves could ever hope to achieve.
In 2012, the U.S. Congress passed the National Defense Authorization Act (NDAA) with relatively little attention from the media―despite the freedoms it obliterated. The NDAA was enacted to empower the U.S. military to fight the war on terror. But buried in this law are two provisions (Sections 1021 and 1022) that authorize the indefinite military detention, without charge or trial, of any person labeled a “belligerent”―including an American citizen.
These NDAA provisions (which have been re-approved by Congress and signed by President Obama every year since 2012) override habeas corpus―the essence of our justice system. Habeas corpus is the vital legal procedure that prevents the government from detaining you indefinitely without showing just cause. When you challenge your detention by filing a writ of habeas corpus, you must be promptly brought before a judge or into court, where lawful grounds must be shown for your detention or you must be released.
Under Section 1021, however, anyone who has committed a “belligerent act,” can be detained indefinitely, without charges or trial, as a “suspected terrorist.” This is a direct violation of the U.S. Constitution and our Bill or Rights. In The Federalist No. 84, Alexander Hamilton stressed the importance of the writ of habeas corpus to protect against “the favorite and most formidable instruments of tyranny.”
Only 13 senators voted against the NDAA in 2012, including Bernie Sanders (I-VT), Al Franken (D-Minn) and Rand Paul (I-KY).
According to Dan Johnson, the 23-year-old founder of People Against the NDAA (PANDA), our current presidential candidates do not seem concerned about it either. “Hillary Clinton has been entirely silent about it, while Donald Trump has come dangerously close to endorsing it, approving of military trials for American citizens at Guantanamo Bay just this month,” Johnson notes.
A protester questions the NDAA’s place in American law (source)
I asked Johnson to explain how the NDAA was passed and what implications it holds for a free America.
Steve Mariotti: How did you learn about this little-known law, the NDAA?
Dan Johnson: Five years ago, I came across a video, 61 senators betrayed you today. A curious political science major, I clicked to find Senator Lindsey Graham on the Senate floor vehemently promoting the idea that “enemy combatants” should not be entitled to due process.
Senator Graham was speaking in support of the 2012 National Defense Authorization Act (NDAA), which was signed into law by President Obama on New Year’s Eve in 2011. The NDAA authorizes the President to order the U.S. military to detain anyone in the United States without charges or a trial, until the war on terror ends. During that detention, the detainee is classified as an enemy spy, a belligerent. Even if you are an American citizen, you could be tried in military court, transferred to another country, or even executed... all without charges or a trial.
For these reasons, the NDAA is being opposed by groups that span the political spectrum―from the ACLU to Rush Limbaugh. It has been the subject of a lawsuit in Hedges v. Obama and is formally banned in several places.
Senator Lindsay Graham promoting the NDAA on the Senate floor.
SM: What is so scary about the NDAA?
DJ: The NDAA’s detention section harkens back to one of the worst civil rights violations in U.S. history: when the U.S. government detained over 120,000 Japanese-Americans, and a few thousand German- and Italian- Americans, without charge or trial. This abuse was allowed only because of Executive Order 9066, signed into law by President Roosevelt in post-Pearl Harbor 1942. The order authorized the Secretary of War and his commanders to re-designate parts of the United States as military battlefields.
Men, women and children were incarcerated in the U.S. due to their ethnic heritage during WWII (Source)
The NDAA also applies the laws of war on American soil―except under this law, everyone, whether an American citizen or not, is robbed of their rights. Under Section 1021, anyone who has committed a belligerent act, which even the government could not define when questioned in court, can be detained indefinitely, without charges or trial, as a “suspected terrorist.”
In essence, the 2012 NDAA brought the war on terror home. It is the authority used to kill American citizens abroad and justify the abuses at Guantanamo Bay. And now it applies on American soil.
SM: Who are the “covered persons” in the 2012 NDAA?
DJ: The 2012 NDAA’s detention provisions apply to anyone, anywhere. But who is most likely to have the NDAA used against them? It depends on how you define the word terrorist.
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The Department of Homeland Security said that individuals or organizations “reverent of individual liberty” and “suspicious of centralized federal authority” pose a threat. The state of Georgia calls publishing “public records” terrorism. The FBI added the director of an anti-fracking film to the terror watchlist; and tells business owners to look for terrorists via “strange odors,” “ordering a specific hotel room,” and demanding “identity ‘privacy’ in dozens of their documents.
The government won’t define “terrorist” in order to keep their options flexible. So it means whatever they want it to mean, at any point. And under the 2012 NDAA, the term “terrorist” can be applied to whomever they want to apply it to, at any point.
SM: Does that really mean American citizens could be treated like POWs (prisoners of war)  by the military?
DJ: If only we were so lucky. It’s actually worse than that.
The Geneva Conventions created in 1949 were a set of treaties that established international law standards for the humanitarian treatment of people involved in war. The Geneva Conventions split people on a battlefield into two categories: combatants (soldiers) and non-combatants (civilians). Under the Geneva Conventions, POWs are captured combatants protected by international law from torture, starvation and the denial of medical care.
After 9-11, the U.S. government wanted to get around the Geneva Convention’s ban on torture of combatants so it created a new category: unlawful enemy combatant, i.e. a “terrorist.” This is a person who took up arms on a battlefield but is not entitled to POW protections. As Department of Defense General Counsel William Haynes wrote in a letter to the Council on Foreign Relations, regarding Guantanamo Bay: “All of the detainees are unlawful combatants and thus do not as a matter of law receive the protections of the Third Geneva Convention.”
In 2009, Congress passed the second Military Commissions Act, which quietly replaced unlawful enemy combatant with unprivileged enemy belligerent. Both noncombatants and civilians could then be categorized as “enemy belligerents,” and denied their Geneva Conventions rights. 
When the United States executed American citizen Anwar-al-Awlaki and his son in Yemen via drone strike on September 30, 2011, the rationale for the attack was that al-Awlaki had been labeled “an unprivileged enemy belligerent.” Under the 2012 NDAA, any American citizen can now be labeled the same.
A 2013 protest of the NDAA and detention of prisoners in Guantanamo, led by Amnesty International (source)
SM: Who is making the decision to implement this?
DJ: The 2012 NDAA grants one person in particular, the president of the United States, the authority to determine who is and is not considered a “suspected terrorist.” But he can designate that authority to anyone he would like, and we would not know because it would be considered a State Secret.
It was introduced in the Senate by Senator Carl Levin (D-MI) and a concurrent version was introduced in the House by Rep. Buck McKeon (R-CA). It was bipartisan legislation, passing 93-7 in the Senate and 283-136 in the House.
A previous champion of the fight against the NDAA was Rep. Justin Amash, but recently, no representative in either house has introduced legislation to curb the NDAA. It is the realization of one of my greatest fears: once Americans forget about this legislation, that’s when it will be used en masse.
SM: Are American civilians currently being detained under NDAA?
DJ: The scary thing is that we do not actually know. Why?
  • The government does not need a warrant to detain you.
  • The government does not have to produce any record of your detention.
  • The military, unlike the police, does not need to take record of your arrest.
Congress tried and failed to pass a provision that would have required the Secretary of Defense to submit a list of detainees under the NDAA to Congress every year.
In Hedges v. Obama, a case brought by journalists and activists who believed the NDAA’s detention provisions could be used to detain them, the government refused to confirm or deny that these provisions were in play right now. Judge Katherine Forrest agreed that the NDAA “does not pass muster under the First Amendment itself” and issued a permanent injunction preventing the enforcement of the NDAA.
In response, the Federal government immediately applied for an emergency stay to delay the case This very fact hints that the government is probably holding American civilians under the NDAA. We just don’t know where.
SM: When will this bill expire?
DJ: When will the war on terror end? That’s when the NDAA powers expire. America entered this war with the Authorization for Use of Military Force in 2001, which authorized “necessary and appropriate force” to go after Al-Qaeda and the Taliban, and to go to war in Afghanistan. It is also the same bill quoted by the 2012 NDAA.
So when the war on terror ends, that’s when these extraordinary military powers will end. And in all probability, the answer is never.
If you would like to help stop the NDAA, visit PANDA’s Take Back Your Town page here.

Sunday, February 11, 2018

How We Got Here: The History of the 2012 NDAA’s Indefinite Detention Power


With the 2017 National Defense Authorization Act (NDAA) coming up for a vote in Congress as soon as next month, now is a good time to revisit the history of the 2012 NDAA’s indefinite detention powers, and based on that history, why Congress should seriously think about repealing them.

The authority underpinning the detention provisions of the 2012 NDAA is in the claim that the laws of war can be applied to American citizens in the United States. It is crucial, therefore, to any true understanding of these provisions that we revisit the two times the laws of war were applied to American citizens in our past, and then retrace how the War on Terror has brought the laws of war to bear on American citizens again.
Early History
The first use of the laws of war against American citizens was during the U.S. Civil War. Shortly after the outset of the war, President Abraham Lincoln issued Proclamation 94[i]. This order suspended habeas corpus, the legal requirement that the government must present a reason for someone’s detention or incarceration, and also subjected to martial law “all persons discouraging volunteer enlistments, resisting militia draft or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States”[ii].
Under the authority of this proclamation, the Union military detained approximately 13,000 supposed Southern sympathizers[iii]. One of those detained, Lambdin P. Milligan, was a lawyer who was heavily critical of Lincoln’s war efforts. He was sentenced to hang by a military tribunal. His sentence was later commuted to life imprisonment by President Andrew Johnson.
A year later, the Supreme Court heard Milligan’s case in the famous Ex-Parte Milligan. In no uncertain terms, the Court slammed the Lincoln Administration for detaining Milligan under martial law, violating his privilege of habeas corpus, and applying the laws of war to a civilian:
“But it is said that the jurisdiction is complete under the ‘laws and usages of war.’
It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise (emphasis added).[iv]
When the courts are open, the Supreme Court wrote, no civilian can Constitutionally be tried under the laws of war.
President Franklin Delano Roosevelt would ignore this basic determination less than 100 years later.  On February 19th, 1942, FDR signed Executive Order 9066[v]. This order applied the laws of war “in such places and of such extent as [The Secretary of War] or the appropriate Military Commanders may determine.” Most Americans know what happened next. In less than a year, nearly 120,000 Japanese-Americans were detained in military camps based on “race prejudice, war hysteria, and a failure of political leadership.[vi]
The U.S. government later apologized for this gross violation of individual civil liberties, and authorized the payment of reparations to internment survivors, when President Ronald Reagan signed the Civil Liberties Act of 1988.
The War on Terror
After the events of September 11th, 2001, the opportunity arose again for the Executive Branch to place Americans under the laws of war. The tool, this time, was passed by Congress.
The 2001 Authorization for Use of Military Force (AUMF) was passed by Congress with the explicit purpose of enabling US forces to track down Al-Qaeda and Taliban leadership in Afghanistan. It is only two pages, and was supported by nearly every member of Congress 13 days after the September attacks.
The 2001 AUMF provided the president with sweeping new authority to go after anyone directly involved with the September 11th attacks. The wording of the operative part of the resolution is as follows:
“(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[vii]
While the authority granted to the Bush administration was sweeping in that the president alone could now determine, without a court hearing, who was involved in the attacks of September 11th, it was specifically targeted at those who had committed a crime (the 9-11 attacks). , and as a military authorization, it only applied to non-citizens outside the United States. The administration however, was unsatisfied with these Constitutional limitations, and sought for a place to expand beyond them. A few years later they would get their chance.
Yaser Esam Hamdi was born an American citizen in Louisiana in 1980, and moved to Saudi Arabia as a child. By 2001 he resided in Afghanistan. He was captured by coalition forces in Afghanistan, detained on “little more than the government’s ‘say-so’[viii]“, interrogated, and eventually sent to the military prison at Guantanamo Bay.
His father challenged his detention, and the case went up to the Supreme Court. In front of the Court, the Bush administration made two key arguments. One, that the president had the Constitutional authority under Article II to detain Hamdi without trial. And two, that even if that wasn’t true, the 2001 AUMF authorized the president to detain Hamdi without trial, regardless of his status as an American citizen.
The Supreme Court did not consider the legality of the first claim, because it approved of the second claim. In so doing, the Supreme Court did two key things:
  • It let the president’s claim that he had the plenary authority to detain any American citizen, anywhere in the world except the United States, go unchallenged.
  • It allowed the administration to remove any citizenship restrictions on the 2001 AUMF, leaving only two protections keeping any American citizen from being detained without trial, tortured, or otherwise dealt with as an enemy combatant by the Bush administration: connection to the September 11th attacks and the borders of the United States.
On the same day at the decision of the Supreme Court in Hamdi v. Rumsfeld, the Court also released its opinion in Padilla v. Rumsfeld, removing the second of those two protections.
Jose Padilla was an American citizen living in Pakistan. When he flew to the United States, he was detained in Chicago’s O’Hare airport on accusations of providing support to the Taliban. He appealed his detention without trial on the basis of his citizenship and being detained on US soil.
In that case, the Bush administration argued it could detain U.S. citizens, on American soil, without charges or a trial under the 2001 AUMF. The Court decided to focus on the habeas petition and not to consider the question of whether or not the president could order the detention of an American citizen on U.S. soil.
U.S. citizens were no longer protected from indefinite detention without trial inside the United States.
The logical extension of this law of war authority occurred on September 30th, 2011, when Anwar-Al-Awlaki, an American citizen, was extrajudicially executed via drone strike in Yemen[ix]. His son, 16-year old Abduhlrahman Al-Awlaki, was executed via drone strike two weeks later. In the memo justifying the drone strike on Anwar that was leaked to the press two years later, the 2001 Authorization for Use of Military Force is cited as the authority for the assassination[x]. The justification for killing Al-Awlaki’s son has never been released.
Now that the Bush and Obama administrations had detained US citizens on US soil without charge or trial, and executed American citizens abroad, there was just one protection left for U.S. citizens. You still had to be connected to the attacks of September 11th, 2001.
The 2012 National Defense Authorization Act, Section 1021, removed that last protection.
The National Defense Authorization Act, itself, is typically a bill that authorizes funding for the military. It has had various controversial provisions in the past, such as the creation of a program to transfer used military equipment to local police departments under the 1998 NDAA[xi], it is primarily a defense spending bill that has been passed every year for years.
The fact that it is a yearly spending bill, and authorizes funding for American troops making it a difficult bill to vote against, made it the perfect legislation in which to slip two provisions that remove the last set of protections against indefinite detention of American citizens without trial.
The 2012 NDAA started out as Senate Bill 1867. Sections 1031 and 1032 (which would later become Sections 1021 and 1022) were inserted during the initial Armed Services Committee deliberation on the bill. At the time, the provisions as introduced by Senators John McCain and Carl Levin supposedly excluded American citizens. The Obama administration threatened to veto the bill because it interfered with its “flexibility” to fight terrorism[xii].
Before the provisions passed out of the Senate, American citizens were again included in the bill. The key section, 1021 (b) 2, expanded the definition of “covered persons” under the 2001 AUMF to include, in addition to those who “ planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons“:
“2) A person 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.[xiii]
During the Senate debate on these provisions, Senator Rand Paul (R-KY) noted the ease with which any American could get caught in the 2012 NDAA’s net. Senator Paul referenced Federal Bureau of Investigation (FBI) documents that claim “missing fingers on a hand,” having “7 days worth of food supplies,” “multiple guns in the home”, and having a “strange odor” were indicators of terrorism. Senator Paul was right to point out the extremely broad and arbitrary nature of the government’s definition of terrorism and “support” of terrorism. Government documents uncovered before and since have defined the Tea Party movement, supporters of various presidential candidates, and Department of Homeland Security-funded studies that define those who are “reverent of individual liberty” and suspicious of centralized federal authority” as potential terrorists[xiv].
With the addition of one simple paragraph, the Senate removed the last vestiges of judicial process from American law, and overnight, put forth the legislation necessary to turn America into a legal battlefield in the war on terror.
Before the 2012 NDAA, the only thing preventing the President from ordering an indefinite detention of an American citizen was the requirement that the citizen be tied to a past act of terror. The new requirements include nothing of the sort. There is no requirement for court review,  judicial process, or requirement that the government present evidence that a citizen was involved in terrorism. Even if there were, the government, when challenged in open court in Hedges v. Obama, refused to define what would be considered terrorism under the 2012 NDAA.
Now, if the president, or someone he designates, merely alleges, without proof, that anyone has “substantially supported” or “directly supported” “associated forces” or commits a “belligerent act” in this “support” that person can be disposed under the laws of war.
And what does “disposed under the laws of war” mean? Yaser Hamdi, Jose Padilla, and Anwar Al-Awlaki give us some idea, but just to make sure we’re clear, the 2012 NDAA lays out what could happen to someone the president alleges is a covered person. Among other things:
  • Detention under the law of war without trial
  • Trial in front of a military commission
  • Extraordinary rendition to any foreign entity, anywhere in the world
Since enhanced interrogation and extrajudicial execution have already been used in precedent, add them to that list.
In other words, if the president merely alleges that you have “supported” “associated forces” of terrorism, you can be detained indefinitely, tortured, or even killed without ever seeing a lawyer or getting a trial. And, as District Court Judge Katherine B. Forrest put it, there is no requirement you are even aware you are supporting terrorism:
“The government was unable to define precisely what ‘direct’ or ‘substantial’ ‘support’ means…Thus, 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. This measure has a chilling impact on first amendment rights  (emphasis added).[xv]
The 2012 NDAA passed the U.S. Senate 93-7 and the U.S. House of Representatives 283-136. It was signed into law on New Year’s Eve 2011 by President Barack Obama, from his vacation house in Hawaii, while Americans poured another round of drinks.
Post-passage of the 2012 NDAA
Reinforcing the Obama’s administration’s intent to use the 2012 NDAA on potentially innocent Americans, a few things have happened since the 2012 NDAA was signed. First, when District Judge Katherine B. Forrest asked the government if it was currently using the 2012 NDAA’s detention provisions, it refused to answer. Two, when Judge Forrest issued her permanent injunction against the detention provisions, the government applied for, and received, an emergency stay from the Appeals Court. You don’t apply for an emergency stay unless you are currently using the provisions.
Third, in a March 4th, 2013 letter to Senator Rand Paul, Attorney General Eric Holder admitted that it would be possible for the President to “authorize the military to use lethal force within the territory of the United States.[xvi]” This is the very authority the 2001 AUMF has been interpreted to grant, and the for which the 2012 NDAA removes all judicial process requirements.
We are not aware, at this point, of any use of the 2012 NDAA currently against an American citizen. But because the law allows for no charges, no trial, and indefinite detention, we will probably never know. An American citizen can be simply disappeared, or as Attorney General Eric Holder put it, killed, without any charge or a trial in America.
That’s not the America I was brought up to believe in. And I fear if we don’t do something about it, we will have lost everything that made this country exceptional in the first place.
Dan Johnson is the Founder of People Against the NDAA
[ii] Ibid.
[iv] Ex. Parte Milligan (USSC, 1866)
[viii] Hamdi v. Rumsfeld (E. Va. 2002)
[xv] Hedges v. Obama (S.D.N.Y. 2012)