The following commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published in longer form on May 21, 2012.

We’re entering the final phase of America’s transition to authoritarianism, a phase notable for its co-opting of civilian police as military forces. Not only do the police now look like the military—with their foreboding uniforms and phalanx of lethal weapons—but they function like them, as well. No longer do they act as peace officers guarding against violent criminals. And no more do we have a civilian police force entrusted with serving and protecting the American people.  Instead, today’s militarized law enforcement officials, having shifted their allegiance from the citizenry to the state, act preemptively to ward off any possible challenges to the government’s power.

In such an environment, free speech is little more than a nuisance to be stamped out. Nowhere is this more evident than in the way police deal with those who dare to exercise their First Amendment right to “peaceably assemble, and to petition the Government for a redress of grievances.” For example, most recently, Chicago police in riot gear and gas masks, as well as SWAT teams, clashed with thousands of anti-war protesters who gathered to air their discontent during the NATO summit that took place on May 20-21, 2012.

Anticipating a fracas, police had, in the weeks leading up to the NATO summit, equipped themselves with $1 million worth of militarized riot gear. Then, a few days before the summit commenced, fighter jets—including Air Force KC-135 tankers, Air Force F-16s, and Coast Guard HH-65 Dolphin helicopters—took to the skies over Chicago, as part of a “security” drill. Surveillance drones were also sighted. Police also arrested six activists and held them in solitary confinement for 18 hours, then released them without charge. News reports have indicated that some of those “arrested” may have been undercover officers.

All of these tactics of intimidation—the show of force by heavily armed police, the security drills by fighter planes and surveillance drones, even the arrests of protesters—were done with one goal in mind: to deter and subdue any would-be protesters.

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Nearly 10 years ago, Khlaled el-Masri, a German citizen of Lebanese origin, was captured by Macedonian authorities, stripped, drugged, detained and tortured for five months. Then, one day, without explanation or redress, el-Masri was left in the Albanian mountains without any explanation and returned to Germany.

While el-Masri did nothing wrong, he continues to await justice in the US.  European courts, however, are stepping in to fill the void.

Since his abduction, torture and subsequent release, the CIA operatives who committed these human rights and international law violations have maintained their positions and authority within the government agency and have even been promoted. No apology has been given to el-Masri by the United States government, and the only explanation offered: “the U.S. privately acknowledged to the Germans what had happened.” El-Masri was not the man they were looking for.

According to the ACLU:

To add insult to el-Masri’s long-lasting injury, according to State Department diplomatic cables, the Bush administration pressured Germany not to prosecute CIA officers responsible for his kidnapping and abuse. Despite the fact that the former President Bush and other senior government officials acknowledged the existence of the U.S. rendition program, and the details of el-Masri’s rendition and torture are widely known, the U.S. continues to deny responsibility and has invoked the “state secrets privilege” to protect government officials, CIA operatives and corporations from civil accountability.

The architects of these severe violations by our government have never faced a criminal investigation, let alone the prosecution required under international law.

While justice may remain fleeting in the US, international bodies are not idly standing by. On Wednesday, May 16, the European Court of Human Rights (ECtHR) heard el-Masri’s claims of torture and abuse. A judge said he and his colleagues would deliberate on the admissibility of the case and consider later announcing a date for the judgment.

This video depicts Annie Proulx reading el-Masri’s account of his experience on December 18, 2005:

• 5/21, Southtown Star, NATO security concerns postpone meeting on Crete detention center
• 5/21, Rev. Richard L. Killmer, Huffington Post, An Apology to Maher Arar — Moving Beyond the Season of Fear
• 5/21, Samantha Abernethy, Chicagoist, Terror Suspects Claim ‘Entrapment To The Highest Degree’ By Undercover Cops
• 5/21, Azadeh Shahshahani, Huffington Post, HB 87 Negatively Impacts Georgia Economy and Reputation
• 5/18, Steve Horn, Antiwar.com, NATO Summit Protesters Faced Police Raid and Arrests in Chicago On Wednesday
• 5/18, Editorial, New York Times, A New Attack on the Constitution
• 5/18, Shahid Buttar, People’s Blog for the Constitution, Congress cans the Constitution, as Chicago police abduct activists

In light of this week’s House votes on the 2013 National Defense Authorization Act and an alarming example of how life could look under the detention provisions, forums on the NDAA like the recent one organized by the Montgomery County Civil Rights Coalition (MCCRC) in Montgomery County, Maryland are essential in a grassroots campaign to protect our civil rights and liberties.

MCCRC is comprised of individuals and organizations working together to protect civil rights and civil liberties everywhere by protecting them in Montgomery County.  As part of their campaign, they are advocating for a local civil rights restoration act modeled on suggestions developed by the Bill of Rights Defense Committee (BORDC) and ACLU.

BORDC’s Shahid Buttar, one of two speakers at the April 26 forum, warned that “Under the NDAA it’s not even the case that the state could prosecute you [for broadly drawn "terror" charges such as eco-vandalism or animal rights protests].  You could just be detained. Period. And granted you’d still have habeas rights, but anyone who’s been watching the DC Circuit Court knows how tenuous habeas has become.”  Listen and watch Mr. Buttar discuss the NDAA during this lively event.

With Eric Bond, editor of the Takoma Park/Silver Spring Voice moderating the event, the other speaker, National Security Network executive director Heather Hurlburt addressed, among other things, the motives behind the drafting of NDAA Sections 1021 and 1022.  Visit the MCCRC blog for highlights from Ms. Hurlburt’s discussion and  additional video of the well attended forum.

The MCCRC anticipates that the Takoma Park City Council will vote on its proposed resolution tonight, Monday May 21.

Journalist Chris Hedges of Truthdig responded on Friday to U.S. District Judge Katherine Forrest’s decision to enjoin Section 1021 of the National Defense Authorization Act (NDAA).

Hedges was one of several plaintiffs in a lawsuit against President Barack Obama and Defense Secretary Leon Panetta challenging the NDAA’s provisions for domestic military detention. The other plaintiffs included Glenn Greenwald, Noam Chomsky, Dan Ellsberg, and Birgitta Jonsdottir, “a member of parliament of Althing, the Icelandic parliament.” Others include:

Alexa O’Brien (who) is an independent journalist who writes for WL Central…Kai Wargalla…a British activist who founded Occupy London (and) Jennifer Bolen, who along with Hedges spearheaded the organization of this lawsuit…an activist with Revolution Truth who did substantial work to defeat the NDAA.

Mr. Hedges’ headline, “A victory for us all,” is right on. He also suggests that, “every once in a while the gods smile on the damned.”

What’s really bizarre was the US Government’s responses to Judge Forrest’s questioning:

The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole. And this, I think, decided the case.

Chilling, isn’t it? Our government implements more and more heinous infringements of our rights, without even a logical reason for doing so. In this case, the authorities couldn’t even come up with any kind of illustration for when the law might apply, or when it might not.

Congress often tosses around words such as “terrorist” and “national security,” and the justice system usually rolls over. While the NDAA reflects an authoritarian power grab, Judge Forrest’s decision was an important check & balance.

The government now has sixty days to appeal. An appellate panel of judges, lacking the brass of Judge Forrest, might give a wink and a nod and overturn this ruling in the name of “national security.” Hedges explains why not to be surprised by that potential turn of events:

The goal of the corporate state, like that of any totalitarian entity, is to create a society where no one has the capacity to resist.

It is not going to get better. The climate crisis alone will assure that. The corporate state knows what is coming. Globalization is breaking down. Our natural resources are being depleted. Economic and political upheavals are inevitable. And our corporate rulers are preparing a world of masters and serfs, a world where repression will be our daily diet, a world of hunger and riots, a world of brutal control and a world where our spirits must be broken….We must no longer let illusions pacify us. Hell is truth seen too late. In large and small ways we are called to resist, resist, resist, as we race heedlessly into the abyss.

A recent report published by the Charity and Security Network examines the relationship between national security objectives and U.S. humanitarian relief during times of conflict and disaster. It reveals how our national security policies work at cross purposes with our foreign policy.

U.S. counter-terrorism law — particularly the standard for “material support of terrorism” codified under the USA PATRIOT Act — prohibits any form of direct, or indirect, support to foreign terrorist organizations listed by the Department of State. Global War on Terrorism (GWOT) objectives disallow not only government aid provision, but also restrict humanitarian efforts of aid groups who must establish contact with potential regional terrorist organizations in order to access civilians in need of support.

Yet in regions where terrorist organizations have an extensive base, such as Afghanistan and Somalia, it is difficult to mobilize aid for the support of civilian populations without contact with the armed militant groups established there. The law, however, does not bend.

According to Georgetown University law professor and Bill of Rights Defense Committee advisory board member David Cole:

The current legal framework for regulating material support to terrorist groups raises serious constitutional questions under the First Amendment rights to speech and association, and under the Fifth Amendment Due Process Clause. The basic problem is that Congress has legislated far too broadly, and has thereby given the Executive sweeping and largely unchecked authority to blacklist disfavored organizations and criminalize all support provided to them, without requiring any showing that the support is in fact connected to furthering terrorist activity.

The impact of this legal regime is to undermine humanitarian giving to war-torn places, at times where it could most improve sentiment towards the US.  For instance, Somalia was unable to receive large-scale humanitarian aid from the U.S. during the acute famine in 2011, since much of the southern regions are controlled by the terrorist group al-Shabaab.

The broad terms of U.S. law and inflexible implementation policies contributed to the polarized deadlock in which the famine emerged. Somalia was already vulnerable to the disaster, in the context of weak government, absent infrastructure, and ongoing military conflict with high civilian casualties. The GWOT-centric approach provided no guide for aid workers navigating this terrain; instead it served to further restrict humanitarian efforts aimed at civilian relief.

Similarly, in Pakistan, local Islamist organizations were in a better position to mobilize aid and relief to victims of a major earthquake in 2005 and catastrophic flooding in 2010 – however, GWOT objectives prevented donors and charities from collaborating with such organizations who were affiliated with US-designated terrorist groups. The predictable results include lost opportunities to build goodwill.  In fact, hampering humanitarian aid to warn-torn areas may ultimately increase violence.

This concern with who distributes aid should not…further isolate communities. When a military agenda takes precedence over humanitarian objectives rather than accommodating them, such isolation serves to drive the desperate conditions that lead to violent extremism.

In the wake of this week’s House votes on the 2013 National Defense Authorization Act — which left the NDAA’s domestic military detention provisions even more noxious than they were before — one might legitimately wonder what country we live in.

Once again, our nation has demonstrated that the ”land of the free” is an empty slogan, a vestigial nod to a constitutional vision that has long inspired the world yet seems wasted on our own shores. For what purpose, exactly, did the United States squander decades, trillions of dollars, and thousands of lives during the Cold War?

FDR was right: “The only thing we have to fear is fear itself.”  More so than any terror threat, it is the fear mongering about national security that presents the greatest danger to our Republic’s future.  No “home of the brave” would be brow-beaten by fears of “giving rights to terrorists” into resigning its own rights, inviting repression upon itself by allowing government powers long used to define  authoritarianism.

Welcome to the U.S. House of Representatives!  Is it too generous to say that democracy in America hangs by a thread?

The America I know wasn’t intimidated: thousands have mobilized all over the country to defend their rights.  Dozens of Occupy sites joined with Tea Party chapters in national days of action in December, February, and decentralized actions dating back even earlier.  Grassroots activists have organized forums, rallies, marches, protests, vigils, flashmobs, street theater, and more from coast-to-coast.

This week, Hawaii (a blue state) joined Arizona (red) and Virginia (purple), in addition to a dozen local jurisdictions across eight states — led by the conservative Colorado county that hosts the Air Force Academy — that have raised their voices decrying the NDAA’s detention provisions and demanding due process.

The failures of Congress, or for that matter the (to quote…ahem…Sarah Palin) “lamestream press” to pay any heed to these myriad voices suggests a process problem even beyond military detention.  If our elected leaders are beholden to executive power and hellbent on eroding the judiciary’s (and their own) ability to check future abuses, does it even matter what We the People do?

It’s a bit like watching a Republic fall apart at the seams, in slow motion.

If a transpartisan coalition, uniting everyone in the country who cares enough about constitutional rights to actually understand them, from Green party lawyers to Tea party military vets, from San Diego to Maine, can not force Congress to respect the principles every member has sworn an oath to defend, then what possibly could?

It gets better…er, worse.

Not only has Congress given its institutional middle finger to the Constitution, but the Chicago Police Department — which not long ago tortured hundreds of innocent African-American men into false confessions (sound familiar?) — is offering clues about what life under the NDAA might one day look like.  Perhaps still reeling from the memory of the 1968 Democratic National Convention, the CPD  has learned from its mistakes, preempting First Amendment activity by abducting activists. [UPDATE: Several of the activists abducted on Wednesday have since been accused of terrorism.]

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• 5/18, Jose Luis Magaua, RT, Congress still okay with indefinite detention and torture of Americans
• 5/18, Ryan J. Reilly, TalkingPointsMemo.com, House Endorses NDAA’s Indefinite Detention
• 5/17, Rep. Adam Smith and Rep. Justin Amash, Politico, The case against ‘indefinite detention’
• 5/17, Hugh McQuaid, CT News Junkie, Racial Profiling Bill And Secure Communities Intersect
• 5/17, Elise Foley, Huffington Post, Prison Rape Elimination Act To Expand To Immigrant Detention Centers
• 5/17, Associated Press, Washington Post, NYPD announces training changes in stop-and-frisk policy amid allegations of racial profiling
• 5/16, Richard Fausset, Los Angeles Times, Immigration: ACLU alleges rights violations at detention centers
• 5/16, Jane Sutton, Chicago Tribune, Guantanamo lawyers want ex-CIA official to testify

The legacy of weak racial profiling reforms continued in Connecticut this week, when the State House of Representatives passed bill No. 364, an act that allows Connecticut police departments to easily dodge participation from anti-racial profiling programs.

Changes to the state’s main racial profiling law, the Alvin V. Penn Act, have been championed in recent years by the Connecticut Civil Rights Coalition (CCRC), a group of organizations and individuals brought together by the Bill of Rights Defense Committee. Passed over ten years ago, the Penn Act was designed to require local and state police in Connecticut to record the perceived race, ethnicity, color, age and gender of any person they stopped for a traffic violation. Police departments were then to submit traffic stop data and any complaints of discrimination they received as an effort to increase transparency and create accountability. However, as the Act was always given abysmal funding and there has been no requirement to implement it statewide, the law has had virtually no effect.

In light of the high profile New Haven racial profiling case, both the Connecticut House of Representatives and State Senate approved bill No. 364, which they claim will end racial profiling by giving teeth to preexisting laws.

Yet the bill’s sole accomplishment is that oversight power on how the bill is enforced will be transferred to the better equipped Office of Policy and Management (OPM), as well as the Criminal Justice Information System Governing Board.  The OPM would also have a special advisory board to deal specifically with racial profiling matters.

However, the bill would exempt police departments from all of the law’s requirements if the OPM do not provide the traffic stop forms. As these forms are already in existence and the process of distributing them is fairly simple, it makes no sense why exemptions are needed.  One possible reason: this is just another ploy for the state to avoid accountability around police profiling.

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Democrats and Tea Party Republicans are advocating a new proposal to ban indefinite detention on American soil. After President Obama signed the National Defense Authorization Act (NDAA) last year, anyone accused of being a terrorist, committing any “belligerent act” or even providing “material support,” can now be detained indefinitely by the military without a trial. This includes American citizens.

Fortunately, a bipartisan coalition is working to stop the NDAA. Congressmen Adam Smith (D-WA), a Ranking Member of the House Armed Services Committee, and Justin Amash (R-MI), who Reason magazine called “the next Ron Paul,” have sponsored an amendment to the latest defense authorization bill, currently on the House floor.

If adopted, the Smith-Amash Amendment would make three significant changes to the NDAA. First, it would amend Section 1021 (which authorizes indefinite detention) to ensure that those detained will not be subject to military commissions, but civilian courts established under Article III of the Constitution. As Congressman Smith put it, this would “restore due process rights.”

Second, the Smith-Amash Amendment would ban “transfer to military custody:”

No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention…

Finally, their amendment would repeal Section 1022 of the NDAA, which mandates military custody for those accused of foreign terrorism.

Both Smith and Amash have criticized the NDAA. Amash blasted the NDAA as “one of the most anti-liberty pieces of legislation of our lifetime.” In a letter urging his Republican colleagues to support the amendment, Amash writes:

A  free country is defined by the rule of law, not the government’s whim. Americans demand that we protect their right to a charge and trial.

Meanwhile, in an interview with The Hill, Smith was concerned about the potential abuses of power:

It is very, very rare to give that amount of power to the president [and] take away any person’s fundamental freedom and lock them up without the normal due process of law…Leaving this on the books is a dangerous threat to civil liberties.

The Smith-Amash Amendment is expected to be voted on later this week. So far, it has 60 co-sponsors in the House. Meanwhile, Senators Mark Udall (D-CO) and Patrick Leahy (D-VT) have introduced a similar bill in the Senate.

To stop the NDAA, the Bill of Rights Defense Committee is coordinating grassroots action all across the country, including a model resolution “to restore due process and the right to trial.” In addition, our partners at the Tenth Amendment Center have developed a range of model legislation to preserve liberty, ranging from ending local compliance with the NDAA to nullifying the act. Together, both organizations published a joint op-ed supporting the Smith-Amash amendment in the Hill yesterday, mere hours before Federal District Judge Katherine Forrest enjoined the NDAA’s military detention provisions.