All right, so welcome back to the show.
It's anti-war radio.
Next up is Chris Anders, senior legislative counsel with the ACLU in their Washington legislative office.
Welcome back to the show, Chris.
How are you?
Hi, good afternoon.
Uh, you too.
Welcome back to the show.
Good to talk to you.
Uh, very important stuff to talk about.
First of all, a federal judge did a right thing and struck down a bad thing.
Nuh-uh.
Come on.
Is that really true?
In the news this week, does that happen?
Yeah, it was, it was certainly a, uh, an interesting decision, good decision.
Um, it's still a very early stage in the litigation.
Um, and we'll just have to see, see where it goes, but, um, uh, but it's something that, um, is up on the internet and people, uh, you know, can and should read, it's a, it's a very readable decision too.
Yeah.
Good times.
And, um, uh, they can also of course, uh, read, I don't know if, I'm sorry, I didn't even see the ACLU site, but Marcy Wheeler and Glenn Greenwald and others have great write-ups on it.
Uh, basically what happened was, um, Daniel Ellsberg and, um, Chris Hedges and, uh, a few others, uh, sued saying that they were damaged under the passage of the amendments to the National Defense Authorization Act passed last year.
I think it was, had the name 2012 on it.
Right.
But, uh, but, um, that said that.
Obama or whoever's the president, uh, on his will can have Americans arrested and held by the military in this country.
And, um, and so this federal judge said that at least, I'm not exactly sure, but you can't do it right now.
She put an injunction on him, not a, didn't make a final decision, but put a temporary hold at least on the implementation of that policy in any way.
Is that correct?
That's right.
It's a preliminary injunction.
So this is kind of, it's an early stage of litigation, but it's, um, it's stopping enforcement of it against them.
Um, and, um, and then the next, the next stage will be a longer, um, a longer fight over whether there should be a permanent injunction.
And of course, all these things, you know, can and likely will be appealed up.
So, um, but it, but it, you know, it certainly is an interesting, um, an interesting decision by, uh, by a federal judge in a, uh, in an important court.
Well, you know, I'd like to think that it wasn't even close that of course not, but, um, she had very particular things wrong with this thing, other than just, uh, the most obvious that no way you can't ever arrest Americans with the military unless, you know, they're wearing a foreign government's uniform or something you're talking about.
Well, I think, I think one thing that, you know, is in that decision, which I think is something that I think probably becomes pretty obvious to anyone who looks at the NDAA, the National Defense Authorization Act is, is just how vaguely worded, um, so much of the statute is.
And so, um, one of the things that, um, she emphasized, but I think is, is obvious they want to look at is that, is that there are things like where it says that you, you know, have you supported, you know, as a person supported an associated force of someone who is involved in, uh, in terrorism.
And, um, so when you look at that, those, that, uh, standard, there are lots of vague terms there.
So what does it mean to say you support it?
And what does it mean to say that you're an associated force and who is that?
And, um, and I think that's, um, that's one of the things that I think is concerned, a lot of people looking at this is, this is not, this is not saying this is, uh, there's a power for someone, um, fighting American soldiers on a battlefield in Afghanistan or someplace else, um, this is, this is, you know, potentially about somebody who's, who's doing things that, you know, such as, you know, allegedly giving money and then do they know that they're, who they're giving money to is, is a, uh, affiliate with, uh, with a terrorist organization.
And, you know, what, what's the scope of associated?
So, uh, you know, I wonder about that is, I mean, that's obviously a great point.
Anybody could agree with it, right?
Except so what if an American citizen did outright join up with Osama bin Laden and actually try to do something horrible in a way where it's not vague, whether it's associated or not.
Uh, maybe this guy went and personally shook hands with Ayman al-Zawahiri and taped it and put it on YouTube.
And here he is with a suicide vest when he got arrested.
So, uh, now we can turn him over to the military.
You know what I mean?
If, if, if the objection is that specific, it sort of leaves open circumstances where maybe you could turn this guy over to the military like they did with Jose Padilla.
Yeah.
Well, here, here's the thing is that there's been a long, um, there's a long, a long tradition, um, going back as long as there have been armies, right, that, um, that, that governments can hold people and imprison people who are fighting them.
So it, when it was, you know, old traditional wars, right.
We're fighting where the U.S. was fighting the British, right.
War of 1812.
Uh, if we, if the U.S. captured.
Yeah.
They ended up and died because they didn't think they had a leg to stand on in front of the Supreme court.
So they chickened out, right?
Yeah.
And I, yeah, I think that, you know, so there's this core group of people that I think, um, every lawyer looking at it, I would think would say, you know, yes, you can hold those people.
People are actually shooting, shooting at our soldiers.
It could be shooting our soldiers on a battlefield.
Um, but that's, that's, uh, that's a, that's a smaller, tighter group of people than, um, than who the NBAA or the authorization for use of military force in Afghanistan, a UMA from 2001 applies to because what both this administration and last administration have taken those view that detention power is much broader now, you know, fortunately for, you know, this administration, um, they have not been, uh, uh, there's been no, there's been no, uh, detention of people on us soil.
Um, since, uh, since the last person in that category was transferred over to a federal criminal court in 2009.
And, you know, there's also, there's also very, you know, a very, very strong argument, um, that, that that kind of detention, indefinite detention here at home would be unconstitutional and illegal.
Um, but the problem is that, that there are lots of places in the world where the United States is asserting that authority to detain.
Um, and then, and then the other part is that, is that, you know, we, one of the things that there was this amendment, which I guess we're going to be talking about, um, that was offered last night.
Um, by, uh, by two, a Democrat and a Republican, actually a two party Republican that basically was putting writing right into, we've written right into the statute that, that nobody in the United States could be put into indefinite detention without charge or trial.
And, you know, unfortunately this morning that that went down with, I think it was 184 to, I don't know, 230.
I actually don't have it right here in front of me, um, in the house representative, but that would have, that would have given people, I think a lot more security that, that this power could not be used in the United States itself.
Now, you know, we, we think we believe it'd be unconstitutional to use it that way, but, you know, we, you know, we know that it's been, it was used on a few occasions that way in the last administration.
And, you know, even this president has not sworn that authority.
He said, he's not, he doesn't plan to use it that way.
He's promised not to use it that way, but he has never said that he does not believe he has that authority.
So, um, so it would be, we, we really want to see that kind of protection written into black and white.
And I think that was something that I read, I think that was something I read at Marcy Wheeler's blog that the judge did leave in there that, you know, Congress could remedy this by rewriting it a little bit more specifically and that maybe that would be all right.
Well, I know.
And I think that, I mean, I think that, uh, we'll stay to be some proof enough for what we have now with that legislation that passed last year, the NDAA of 2012.
Um, but, uh, but I think that we're, we're, we're continuing to push hard.
There was, it was actually a really, really hard fought, um, uh, fight on the house floor, uh, yesterday and the vote was this morning.
And, um, and the, you know, the problem is that, you know, it's an election year.
Um, there are some scare tactics, uh, used by the house Republican leadership.
And, um, and, uh, unbelievably, I mean, I guess, I guess the part that I think most people would find kind of mind altering is that there are 230 some members of Congress, um, who, who would vote against an amendment saying you can't put people in the United States.
There's no presence of the power to put, um, uh, to use the military to put people here at home, basically turn American military forces against our own people and put people in prison without charge or trial.
And, um, and that's, you know, and that, it just shows, you know, the kind of the politics that gets played with this kind of issue that, um, that you'd have that many people who would, who would think that that's somehow that's an okay thing to do.
Yeah.
Or that's good politics.
Like you better, you better, uh, go along or else this could cost you the election.
If you don't vote to use the military against Americans, yeah.
Crazy.
Yeah.
And, uh, yeah.
And I think the other part that is, is amazing about it is that, is that, you know, the people who are actually currently responsible for the security of the United States, um, you know, people like, like, uh, general Petraeus at the CIA and, and, um, uh, and, uh, Clapper, the head of the director of national intelligence and, um, and the FBI director, Robert Mueller, um, at the end of the last year, when the NDA was on the Senate floor, they were all coming out against it and they were all saying, this is a bad idea.
This is not how you deal with, with this problem.
And, um, and they, you know, and we, we have a lot of tools and we have a very effective use of these tools, and this is not something that we want.
And the, and the part that's amazing is that, you know, Congress, Congress over the objections of, of basically every national security official out there, um, passes legislation, um, basically saying that they, you know, in their partisan driven world, no better, no better than the people who are actually, um, doing this, uh, doing this work every day in and day out.
Yeah.
Um, one of the things that I like to complain about on the radio show and my guests oftentimes too, is America's Yemen policy, where we back dictators and kill people with robots.
And it seems to me, destabilize that country.
And yet, um, the Obama administration this week announced that anybody who opposes their policy is the one who's guilty of destabilizing the place.
Cause, uh, they'd like to pick and choose whichever dictators they like.
And that anybody who stands in the way of their goals, I think I forget exactly the language that wasn't it.
But in other words, anybody who does anything to undermine their efforts to create stability in Yemen is subject to having all of their assets seized, et cetera, et cetera.
And I wonder, could that really apply to me, to a regular American citizen, or even say, I don't know, you many expat who just is, you know, has a blog or, or wants to lobby or complains about America's Yemen policy.
Is that really right?
Yeah, well, I think, I think that, you know, one of the, one of the concerns that we have is that so much of these, uh, policies are so opaque so that, you know, it's, it's unlike, unlike wars in the past.
And, and, you know, I think even, even the war in Iraq where, um, people knew and had a pretty good idea of who the enemy was, um, and who it is we're fighting and if you didn't want to be shot at by us soldiers, right.
You knew what you had to do to not be shot at.
Right.
Um, and I think the problem here is that, you know, if you look at the targeted killing program, they have yet to, uh, yet to say what the standard is, they've yet to say, you know, here it is, here are the reasons why we believe we can go and hunt you down and kill you, even if you're a United States citizen.
And, um, and so, you know, people, people don't even know exactly what the standard is.
Now, maybe, maybe we would see the standard and many of us would say like, say, you know, Hey, that, that, that seems reasonable.
That seems lawful.
Um, and that's something I can understand.
Um, but, uh, I think, you know, our concern is that, that there is a reason why, why the government is hiding these standards and this, and this legal justification from the American people and the, and from the rest of the world.
And I think the reason is that it's not something that we would be proud of.
It's not something that we as a country would agree with and certainly not something that we would want other countries to be doing to us and to, and to our, our people, uh, elsewhere.
And, um, and I think, well, that's, you know, the, the way, uh, the big part of the world has always worked, um, you know, particularly in international law is that, you know, do you want, you know, do you want to, you know, are you going to behave in a way that you'll be okay with other countries behaving that way?
And, um, and I think starting with, you know, the torture program, um, in the last administration, running through the target killing program in this administration, there are, there are things that the United States is doing that we would certainly be criticizing other countries if they ever did.
And, um, and I think that that's the standard we really have to get back to is, you know, is this the kind of thing we would be saying is okay if it were, if it were done by, by Iran or, or by, uh, you know, Soviet Union in the old days, or even Russia today, right?
Well, and you can just go to state.gov, uh, state.gov to check and see, um, you know, what do they say?
What does America say about these other countries with these exact same policies?
You can read it in Wheaton from Hillary's own staff.
Yeah.
Well, and I think, I think if you look at it, you know, if you take the military commission, the United States spends a huge amount of effort telling other countries and, and counseling other countries, particularly newer countries, you know, do not use your military to, uh, put people on, on trial, use your civilian system, build up your civilian court system.
Um, that's, what's going to, that's what's your long-term protection.
I mean, you're going to be following the rule of law.
And then, and meanwhile, we're, we're trying, you know, the, the most wanted, uh, you know, criminal suspects in, in the United States with a nine 11 defendants, and we're putting them in front of a military tribunal.
Exactly.
The kind of thing that we would, we tell countries all over the world not to do.
So, well, you know, it's funny too, is it's always been kind of without rhyme and reason about who gets a trial and who doesn't, you got something like Jose Padilla, who's an American citizen born here and all that arrested here by civilian cops and then turned over the military.
Meanwhile, John Walker Lynn, he's arrested on the battlefield out there in Afghanistan, and he gets a plea deal and a, you know, civilian court process for what it was worth.
I mean, he was railroaded like crazy, but still, uh, they didn't torture him, uh, like they did Padilla.
But then you take, uh, you know, Al Mari or, uh, you know, who was given the Padilla treatment pretty much, but then you have Abu Ali who was arrested in and really tortured in Saudi Arabia into a plot to assassinate Bush supposedly, and they gave him a civilian trial and it's all just kind of hit or miss at random, you know, what they want to do.
I don't seem to see any real rhyme or reason other than maybe whether Ashcroft won or lost a particular argument over his jurisdiction in a, in a personal faction fight, you know?
And that's, that's no way to run a country, right?
So, but, um, I really, I really appreciate, um, your, your work on all this and, uh, for having us on your show.
Cool.
Well, I really appreciate you, uh, staying, especially over time.
I know you're in a hurry and got a lot of work to do.
Uh, everybody that is Chris Anders from the ACLU.
Appreciate it, Chris.
Great.
Thanks so much.
