“Lawfare” – using the law to undermine the Constitution (a powerful tool in the quiet coup now in progress)

Summary:  There are many ways to change a political regime.  Fast and violent often works.  Our ruling elites (and their supporters) instead have chosen slow and steady methods.  This requires masking the nature of the changes made until our institutions have adapted — and Americans become accustomed to the new order.  Hence the need for propaganda to explain that what look like large changes are really small changes, and there is nothing to worry about.  Here we look at one group working on this large and long project, part of the quiet coup now in progress.

My dear Wormwood,

Obviously you are making excellent progress. My only fear is that you are overdoing it a bit and that if you push the patient too far you will awaken him to the real nature of the current position.

For you and I, who see that position as it really is, must never forget how totally different it ought to appear to him. We know that we have introduced a change of direction in his course which is already carrying him out of his orbit around the Enemy; but he must be made to imagine that all the choices that have effected this change of course are trivial and revocable. He must not be allowed to suspect that he is now, however slowly, heading right away from the Sun on a line which will carry him into the cold and dark of utmost space. …

— From Letter #12 of The Screwtape Letters by C. S. Lewis

The headline of the Lawfare website says “Hard National Security Choices”.  From their “About Page“:

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others.

In fact much of its content explains why the laws no longer protect American citizens, why the vaguely-described enemies of America (most notably, the barely-if-at-all-functional al Qaeda) warrant abandoning the Constitution, and why each brick removed from the Republic’s foundation is inconsequential.

Read the website and know thy enemy.  The posts are too long for full analysis here, and deserve to be read in full.  To give a flavor of their thinking, see these brief excepts from “National Defense Authorization Act FAQ: A Guide for the Perplexed“, Benjamin Wittes (Brookings Institute, bio here) and Robert Chesney (Prof Law, U Texas at Austin; bio here), 19 December 2011.  It’s well-constructed propaganda waged against the Republic.  Closely watch the pea as these masters work.

“What exactly does the NDAA do?

“Section 1021 codifies the Obama administration’s claimed authority to detain Al Qaeda and Taliban fighters and those from allied forces by …”

Not so neutral.

(a)  This law codifies the Obama administration’s claimed authority to detain those they deem to be al Qaeda and Taliban fighters and those from associated (not “allied”) forces.  It’s an important distinction, but familiar to people who read newspapers (which usually refer to “accused” or “alleged” criminals).  Even children know that in America courts determine guilt, not the President.  At least in the America that once was, but not the new regime the author’s work to build.

Chesney (of course) understands this distinction, as he clearly makes it in his December 7 post “The NDAA and US Citizen Detention“.

(b)  Look at this:  “claimed authority to detain Al Qaeda and Taliban fighters and those from allied forces”

False.  The text (which they quote) says that covered persons are not just “fighters”:

• A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
• 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.

This goes far beyond “fighters” to include anyone who “supported” them.  What does that mean?  Gave money.  Gave medical treatment.  Gave encouragement by speech or writing.  The government has already broadly defined support to include actions clearly covered by the first amendment (see the end of yesterday’s post for details).

“Does the NDAA expand the government’s detention authority?

“Nope. Under current law, the Obama administration claims the authority to detain … In light of all this, a law that writes the administration’s successful litigating position into statute cannot reasonably be said to expand the government’s detention authority.

“… The NDAA is really a codification in statute of the existing authority the administration claims. It puts Congress’s stamp of approval behind that claim for the first time, and that’s no small thing. But it does not – notwithstanding the widespread belief to the contrary–expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect.”

Not so neutral.  A more accurate answer is Yes it expands the government’s authority, in the sense that by this law Congress confirms the authority to detain claimed by the Obama administration.  In America the laws are what Congress, the Executive, and the Courts deem them to be.  Checks and balances.  A President can claim authority, the Courts can agree — but Congress also has a say.  When all three branches agree, then the law has changed — no matter what the Constitution says.

The NDAA substantially expands the Executive’s authority by endorsing it claims to greater power.  Especially significant since, as the author’s note:

“As we explain below, the courts have had a decidedly mixed reaction in the pair of cases involving persons captured within the United States, but as for persons captured abroad, they have largely endorsed the government’s position.”

Now we get to the core issue.

“Does the NDAA authorize the indefinite detention of citizens?

“No, though it does not foreclose the possibility either. Congress ultimately included language in the NDAA expressly designed to leave this question untouched – that is, governed by pre-existing law, which as we explain below is unsettled on this question.”

Here the authors play let’s pretend we have amnesia, and forget how we got here.

Those broad claims by the Bush and Obama administrations were made on the basis of aggressive interpretation of existing laws.  Interpretations not mentioned when the laws were debated before enactment.  Now Congress makes new laws, ratifying these aggressive interpretations.  This law will almost certainly become the basis for still aggressive interpretations, giving the Executive more and broader powers.

“Does it repeal the Bill of Rights?

“No federal statute can repeal the Bill of Rights. To the extent any provision of the NDAA is found to conflict with any provision of the Bill of Rights, it will not survive constitutional scrutiny.”

Here they provide some specious reasoning to comfort the gullible.  No law can de jure repeat parts of the Constitution.  Laws can, with the concurrence of the Executive and Courts, de facto repeal parts of the Constitution.  It’s happening now.  The authors of this website go to great lengths to conceal this.

“So if it doesn’t significantly expand the government’s detention authority, doesn’t authorize detention of citizens, doesn’t really mandate the military detention of other terrorist suspects, and doesn’t do more to prevent the closure of Gitmo than does current law, what’s all the fuss about? Is it even important?”

Mustn’t alarm the sheep!

A note from the past, by one of the Founders of our Republic

“They who would give up essential liberty to purchase a little temporary safety deserve neither liberty or safety.”

— From the title page of An Historical Review of the Constitution and Government of Pennsylvania (1759); written by Richard Jackson and published by Benjamin Franklin

For More Information (will be updated)

(a)  Click here to see all the posts at Lawfare about the NDAA.  Especially note this post, in which Raha Wala of Human Rights First rewrites their FAQ (oddly, it does not appear to be posted elsewhere, even on the HRF website.

(b) Other articles: “The National Defense Authorization Act Explained“, Joanne Mariner (Director of Hunter College’s Human Rights Program), JUSTIA, 21 December 2011 — Hat tip to Lawfare.

(c)  Other posts on the FM website about the NDAA:

• Another bill before Congress pushing the USA further into the dark of endless war, stripping away our liberties., 28 November 2011
• RIP, Constitution. The Second Republic died this week. Of course, we don’t care (that’s why it died)., 5 December 2011

(d)  See these FM Reference Pages:

• Information & disinformation, section 2 – About propaganda and info warfare
• America – how can we reform it?, section 1 – About the Constitution, our liberties, and our government

(e)  Other posts about the quiet coup now in progress

1. Forecast: Death of the American Constitution, 4 July 2006
2. See the last glimmers of the Constitution’s life…, 27 June 2008
3. Another step away from our Constitutional system, with applause, 19 September 2008
4. Another step towards fascism: “Silencing the Lawyers”, 31 May 2010
5. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
6. Code red! The Constitution is burning., 5 August 2010
7. An Appalling Threat to Civil Liberties and Democracy, 8 August 2010
8. Every day the Constitution dies a little more, 1 September 2010 — About US government assassination programs
9. What do our Constitution-loving conservatives say about our government’s assassination programs?, 2 September 2010
10. Cutting down the tree of liberty, 9 September 2010 — Government secrets trump fair trials.
11. The guilty ones responsible for the loss of our liberties, 11 September 2010
12. War is the health of the state, 18 September 2010
13. A great philosopher and statesman comments on the Bush-Obama tweaks to the Constitution, 10 October 2010
14. This week’s news: many stories showing that the Constitution is dead, 8 December 2010
15. Conservatives tells us not to worry about the Constitution’s death, 23 March 2011
16. Tearing the Constitution is a bipartisan sport!, 4 April 2011
17. Watch the Constitution die right now as we burn a 2452 year old vital legal precedent, 11 October 2011
18. Let’s gaze upon the corpse of the Fourth Amendment, 12 October 2011
19. Another bill before Congress pushing the USA further into the dark of endless war, stripping away our liberties, 28 November 2011
20. RIP, Constitution. The Second Republic died this week. Of course, we don’t care (that’s why it died)., 5 December 2011
21. Fear the enemies within America more than those without, 21 December 2011

(f)  About effective propaganda in America:

1. Successful propaganda as a characteristic of 21st century America, 1 February 2010
2. More propaganda: the eco-fable of Easter Island, 4 February 2010
3. The hidden history of the global warming crusade, 19 February 2010 — Excellent agitprop!
4. A note about practical propaganda, 22 March 2010
5. About the political significance of the conservatives’ health care propaganda, 23 March 2010
6. Programs to reshape the American mind, run by the left and right, 2 August 2010