Homeland Security Watch

News and analysis of critical issues in homeland security

January 7, 2012

Sorry, I must have made a wrong turn.

Filed under: General Homeland Security — by Philip J. Palin on January 7, 2012

Some votes were taken, a document was signed.  Nothing really happened.  Nothing actually changed.  Did it?

The indefinite detention of citizens by the military, authorized by the National Defense Authorization Act, is perceived by most of those who voted for it — and that small proportion of citizens who have noticed — as a narrowly targeted expediency to be used in extraordinary cases against very bad guys.

Besides the President has stated,

I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Nothing has changed, the President assures us.  Just words on paper and his words protect us from their words.

What about the next administration?  Or the one after that?

Did you notice the arrest of an Ottumwa Iowa sixteen-year-old just before Christmas?  She’s been charged with terrorist conspiracy.  The charge conforms with the letter-of-the-law.  I expect most of those who originally crafted the law did not anticipate it would be applied in this sort of circumstance.

Have you noticed meaning tends to morph over time?

Three days after the arrest of the Ottumwa teenager, Congressman Ron Paul told supporters in a teleconference:

The founders wanted to set a high bar for the government to overcome in order to deprive an individual of life or liberty. To lower that bar is to endanger everyone. When the bar is low enough to include political enemies, our descent into totalitarianism is virtually assured. The Patriot Act, as bad as its violations against the Fourth Amendment was, was just one step down the slippery slope. The recently passed National Defense Authorization Act continues that slip into tyranny, and in fact, accelerates it significantly.

Tuesday night, Congressman Paul did very well at the Wapello County Republican Caucus.   The caucus was held at the high school in which the alleged terrorist is enrolled.

I wonder if the caucus goers noticed any connection between the local arrest and what the Congressman had to say.

Did you notice the January 2 death of Gordon Hirabayahsi?  Here are a few paragraphs from the NYT obit:

In February 1942, two months after the Japanese attacked Pearl Harbor, President Franklin D. Roosevelt, in the name of protecting the nation against espionage and sabotage, authorized the designation of areas from which anyone could be excluded. One month later, a curfew was imposed along the West Coast on people of Japanese ancestry, and in May 1942, the West Coast military command ordered their removal to inland camps in harsh and isolated terrain.

Mr. Hirabayashi, a son of Japanese immigrants, was a senior at the University of Washington when the United States entered World War II. He adhered to the pacifist principles of his parents, who had once belonged to a Japanese religious sect similar to the Quakers.

When the West Coast curfew was imposed, ordering people of Japanese background to be home by 8 p.m., Mr. Hirabayashi ignored it. When the internment directive was put in place, he refused to register at a processing center and was jailed.

Contending that the government’s actions were racially discriminatory, Mr. Hirabayashi proved unyielding. He refused to post $500 bail because he would have been transferred to an internment camp while awaiting trial. He remained in jail from May 1942 until October of that year, when his case was heard before a federal jury in Seattle.

Found guilty of violating both the curfew and internment orders, he was sentenced to concurrent three-month prison terms. While his appeal was pending, he remained at the local jail for an additional four months, then was released and sent to Spokane, Wash., to work on plans to relocate internees when they were finally released.

His appeal, along with one by Mr. Yasui, a lawyer from Hood River, Ore., who had been jailed for nine months for curfew defiance, made its way to the Supreme Court. In 1943, ruling unanimously, the court upheld the curfew as a constitutional exercise of the government’s war powers. Mr. Hirabayashi served out his three-month prison term at a work camp near Tucson.

The Supreme Court declined to rule at the time on Mr. Hirabayashi’s challenge to internment as well. (Mr. Yasui had contested only the curfew.) But in December 1944, in a case brought by Mr. Korematsu, a welder from Oakland, Calif., the court upheld the constitutionality of internment in a 6-to-3 vote.

Mr. Hirabayashi later spent a year in federal prison for refusing induction into the armed forces, contending that a questionnaire sent to Japanese-Americans by draft officials demanding a renunciation of any allegiance to the emperor of Japan was racially discriminatory because other ethnic groups were not asked about adherence to foreign leaders.

The Hirabayashi, Yasui and Korematsu cases were revisited in the 1980s after Peter Irons, a professor of political science at the University of California, San Diego, found documents indicating that the federal government, in coming before the Supreme Court, had suppressed its own finding that Japanese-Americans on the West Coast were not, in fact, threats to national security.

In September 1987, a three-member panel of a federal appeals court in San Francisco unanimously overturned Mr. Hirabayashi’s conviction for failing to register for evacuation to an internment camp and for ignoring a curfew. The convictions of Mr. Korematsu and Mr. Yasui had been overturned earlier.

Have you noticed that individuals, neighborhoods, and nations can react to surprise and stress in unexpected ways?  Sometimes good, sometimes bad.

The President is not a tyrant.  The members of Congress who crafted and voted for the NDAA were motivated to protect citizens, not oppress citizens.

Have you noticed the best intentions do not always deflect bad consequences?

The language and structure of the NDAA in regard to military detention of citizens is dangerously ambiguous.

In this ambiguity we have chosen to leave a path on which we have been progressing for a considerable period.  This new path may be a brief diversion that soon rejoins the old path.  Our choice might also be taking us in a very different direction.  We don’t know yet.  It probably depends on something ahead that we cannot yet see… something that will either cause the paths to cross or further diverge.

I regret this departure from the old path.  But what concerns me even more is the sense that most of those on the path don’t seem to notice there was a fork in the road and we made a choice.

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5 Comments »

Comment by hgrattan

January 8, 2012 @ 4:29 am

Counter-terrorism and counter-Columbine-like attacks (school violence) do not fit neatly into the Constitution but could.

IMHO, the US needs a National Security Court replete with judges, prosecutors, defense attorneys, and court personnel with the requisite security clearances.

NDDA should have provided a National Security Court that balances the states need to provide security while affording suspects and defendants due process.

I don’t know a lot about Emily Six and her schoolmates and that is probably a good thing. Maybe we would all know a lot more about her if something did happen. That’s the paradox of counter terrorism –the metric for CT is nothing –nothing happened. How do you know nothing happened because someone said something and someone did something or nothing would have happened if nothing (or less) was done about Emily Six-like activities?

Comment by Philip J. Palin

January 8, 2012 @ 6:28 am

Mr. Grattan: I would also support innovative means of ensuring the principles of judicial review are preserved. I perceive that in some ways the danger presented by the NDAA provisions reflect Congressional interest in very narrowly framing the problem. This was less counter-terrorism legislation than pro-Guantanamo detention legislation.

Regarding the Iowa case: My point here was not/is not to criticize proactive police engagement. I would not have raised the issue if the charge had been “conspiracy to commit murder” or something similar. Further, I am not arguing the terrorism charge is inconsistent with statute. As noted below, the statutory definition is broad.

But I am reasonably confident that a decade ago when Iowa legislators voted for the legislation, they did not imagine a troubled sixteen year-old girl from Ottumwa as the threat they were trying to address. Just as our federal legislators may yet be surprised to see how indefinite military detention of citizens could be used ten years from now.

Thanks for your comment. Below is the best detail regarding the Emily Six case I have been able to find.

Phil

December 28, 2011

Police say Ottumwa teen planned school shooting spree
Ottumwa police chief reacts to criticism his department overreacted

MATT MILNER and MARK NEWMAN
Ottumwa Courier

OTTUMWA — Authorities have released additional information about an alleged plot to attack Ottumwa High School.

Emily Six, 16, was arrested last week and charged with conspiracy to commit terrorism. Police say she was actively recruiting students to go on a shooting spree at the high school on February 14, 2012. Family members have disputed that assertion.

Additional students remain under investigation, though no other arrests have been made. Ottumwa Police Chief Jim Clark would not comment on the status of the investigation or on whether any firearms related to the plans have been recovered.

Clark acknowledged criticism of the department’s handling of the case. Some have called the arrest an overreaction, while others have questioned whether the charge of conspiring to commit an act of terrorism is warranted.

Clark said the specific charge was determined by cooperation between his department and the Wapello County Attorney’s office. He said both are constrained by how Iowa law defines crimes, including terrorism.

The state’s definition of terrorism is broad, including: “an act intended to intimidate or coerce a civilian population, or to influence the policy of a unit of government by intimidation or coercion, or to affect the conduct of a unit of government, by shooting, throwing, launching, discharging, or otherwise using a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people.”

Clark said two of those points come into play in this case. The students and teachers of Ottumwa High School qualify as a civilian population. And, while most people don’t view a school district as a governmental body, it is.

Clark dismissed accusations that his department overreacted, saying the department has a moral obligation to prevent crimes from taking place when credible information is available.

“We are going to act and intervene. We are not going to wait until after the fact,” he said. “We have to look at it as, ‘What credible evidence do we have?'”

Ironically, a recent survey of Iowa schools, including Ottumwa, appears to show students generally feel safe.

Anne Morgan, a former Davis County school district superintendent, spent most of her career in that comparatively peaceful area. After retiring, she began working part time with the Great Prairie Area Education Agency, and is now helping them administer the Safe and Supportive Schools grant program.

About 20 Iowa school districts will share in the $14 million grant. Four of those districts are in the Great Prairie AEA district. Ottumwa is one of them.

Surveys of staff, students and parents will be used to help implement an “action plan” with the goal of making schools safer and more engaging. So far, results of the student surveys have been counted.

“All the schools in Iowa felt no issue with safety,” Morgan said. “They all scored nine out of nine on safety for student perception. That was last spring, April, with high school students that included Ottumwa High School.”

Part of the reason violence in schools is receiving more attention may be because of more awareness from the schools themselves.

“Districts are doing a better job with keeping their ear to the floor, so to speak. Just 10 years ago, this Ottumwa incident may have never risen to the point that adults would even know about it,” said Morgan.

Comment by hgrattan

January 8, 2012 @ 7:23 am

Agreed. We must acknowledge the hazards of the National Security slippery slope.

But, a slippery slope hazard is not a reason to not do something.

It is a reason to acknowledge the slippery slope and mitigate the slope al la slope-resilience. [analogy intended]

Comment by Harsh Actions Against The Bad Guys Including Government Officials And Career Employees In Acts of Intimidation and Coercion: Term Limits

January 8, 2012 @ 8:41 am

While I concur that We should be indeed quite watchful of the “National Security slippery slope” and yes, We should follow immediately in establishing a “National Security Court…as a balance” as William Cumming has articulated and a good reason to do so….

….our concersn here on “Main Street USA” is not just about individuals or a group who act in such dastardly manner against “Ol Glory, however those to be included who comprise OUR government and/or elected or career government employees/agencies who work for us as We are the government, but what determines when these same folks who We have entrusted to serve the public can be construed as acting in terrorist manner from the executive to the locally elected politician who embrace or act or promote a legal statute “intending to intimidate or coerce a civilian population” individually or as a group, or to establish a policy by intimidation or coercion….using its self-imposed power as a weapon when contrary to the stipulations of the Constitution or even State Constitution which promises to protect citizen and afford due process….

We are tired of this “Goldman Sachs” WH administration in which this Chicago street organizer who has thoroughly studied the US Constitution and has done his best to try and tear it apart or the local agencies and the intimidating ways they impose on citizen contrary to the Rights of a (legal) citizen….We are tired oof both sides of this self-serving Congress on BOTH sides of the asile who have never enacted a National Energy Policy and let me tell you, shortly and by June latest, gasoline prices nationally will be nudging $5.00 a gallon and ssuch will adversely affect our $15+ trillion debt ridden Republic and its people who see children living in cars and pickup trucks getting reacyu in the morning to open the car door into the classrom – how shameful this administration and this Congress and your banker pals have intentionally burdened the people with taking its remaining “change” and made so many dependent….itself, treason We shout! Our country is on the verge of such despair and all is so corrupt from the “beltway bandits” to the local school and town administrators spending monies with little or no accountability and assuring long standing pensions and Life-term healthcare —

….and while I believe we should all be very enlightened as to the criminal behavior and intent to do harm against We the people, government and the people who we have “entrusted” to serve and make up this government, in seeing governmental actions by agencies whether it be local, state or federal and even these special interest groups, I believe that while We should discuss subjects pertaining to Acts of terrorism from within, as herein, We should also be looking at how We here on “Main Street USA” can impose strict laws on those who take an oath of office and work for any agency or governmental body and the actiosnof special interest groups…

….as “Citizen Joe” today, especially as a result of the actins of this WH and both sides of Congress has become quite weary of governing officials!

It is time as well to take an even closer look at government and those serving and to look at laying down strict law and policy against thoose in elected and long term career when representing the our Republic and We must be very specific. I have seen and continually see even State Legislature laying down law which is abusive and these various agencies intentionally harming citizen without due process and these folks who have confided and say, “We are unique agency and We do what we do” knowing that they have very little accountability concerns even when such decision-making is taken with intent to harm citizen with no repercussion as the process they employ is so doen by initimdation.

While it is certainly time to rid ourselves of this “Goldman Sachs” administration at the polling booth though admittedly seeing no other candidate who can convey all the strengths we require in a President and the outcome is very worrisome for us who Love our country and the US and State Constitution, We must also enact “term limits” for every elected office in this country demanding accountabilty and yes that word again, transparency frm those who are elected and who are employed in local, state and federal government positions.

God Bless our beloved Republic and our most charitable people!

Christopher Tingus
“Main Street USA”
PO Box 1612
Harwich, MA 02645
chris.tingus@gmail.coom

Comment by William R. Cumming

January 10, 2012 @ 12:36 am

Great Post and comments! Time will tell whether Mr. Franklin’s statement when asked what kind of government the founders had designed by a man on the street is often quoted as stating “you have a republic if you can keep it”!

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