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Ray McGovern: Amendment to NDAA gives military the right to operate on American soil, detain people without trial for an indefinite period of time including US citizens

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Washington. And in Washington on Thursday, December 1, the Senate passed something called the National Defense Authorization Act of the Fiscal Year 2012. This is a piece of legislation–something more than 600 pages–which authorizes the Pentagon to spend something upwards of $600 billion. Somewhere buried in this legislation was a particular piece of enactment. It goes like this. As currently written, the National Defense Authorization Act (or the NDAA) text affirms the authority of the military to detain, quote, a person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces, under, it says, the law of war, without trial, until the end of hostilities, and authorizes, quote, transfers to the custody or control of the person’s country of origin or any other foreign country or any other foreign entity. Now joining us to talk about what some people are saying is the potential denial of basic rights of American citizens and non-American citizens that may go past the Patriot Act is Ray McGovern. Ray is a former CIA analyst. He was an adviser to Ronald Reagan and President Bush senior. And he joins us now from our Washington studio. Thanks for joining us.


JAY: So, first of all, give us a little better picture of what this legislation means, and then tell us what you think about it.

MCGOVERN: Well, the army has never been allowed–ever since Reconstruction and the very sad chapter of our history on Reconstruction. After that, the army was banned from exercising any police powers within this country. This language reverses that, so reversing 133 years of our history where the army was kept out of internal security functions. Now, that’s the biggie. What it authorizes, although the language is in my view deliberately ambiguous, it authorizes anyone to ask the army to pick you or me up, send me to Guantanamo, and keep me there indefinitely until the end of the war. The end of the war. Yes, the end of the war, when there are no more terrorists around. Give me a break. This is really draconian.

JAY: The end of an endless war.

MCGOVERN: The end of the endless war, yeah, the long war, or the war that–.

JAY: So there’s some dispute on two points, but let’s set aside the ones that are in dispute and let’s just get clear what isn’t in dispute. And what isn’t in dispute is that certainly non-US citizens can be arrested by the Armed Forces anywhere in the world–and it seems, as you say, completely ambiguous this also could happen in the United States–and then be sent to prison without trial and held indefinitely because this is under the War Powers. And then what’s in dispute, if I understand it correctly, is some of the senators that helped draft this thing say that it does apply to US citizens. A few are saying they don’t think it does. But it seems a preponderance of opinion that it does. So where am I factually, here?

MCGOVERN: Well, it does. Now, the only real dispute is whether the president is required to have the army arrest these people and put them in detention, or whether he has some option not to do that. That’s where the dispute, such as it remains, is now. You know, it’s a very, very noxious–very, very reminiscent of the emergency regulations introduced in Nazi Germany in 1933. It goes way beyond the War Powers Act. And it’s meant to intimidate people, to make sure that people don’t act up, speak out. I do believe that the Occupy movement have something to do with the skittishness on the part of Congress. After all, the Occupy movement has no love for Congress. It has criticized it in saying what’s needed is a different kind of arrangement. So what we have here is a bunch of fearful old men, mostly, a couple of old women, couple of young women, who are just trying to make sure that if the lid blows off, they can call the army, of all places, the army.

JAY: But hang on for a sec. This, the legislation, is it not quite specific about al-Qaeda, Taliban, and associates? And, of course, associated forces leaves some wriggle room, but I don’t see how you could get Occupy movement as associate forces of al-Qaeda.

MCGOVERN: Well, there are a lot of us in the Occupy movement are dead set against the war in Afghanistan. There are a lot of us like me who speak out repeatedly against torture and other things that are going on there. So the link is pretty clear if they want to make it. Associated forces? One of the other big things is simply that no longer is this legislation tied to 9/11. In other words, the original authorization for the use of military force way back a couple of weeks or, you know, a week after 9/11 pinned all these terrorists organizations and units and people to 9/11, people who had cooperated in and done 9/11 or had been supporting it. Now that’s out of there. So all you have to do is support terrorists, okay? All you have to do is be seen to be giving material support. Now, the lawyers from the CIA said immediately, oh, look, he says people who bear arms against the United States when we’re at war, yeah, they’re covered, they could be detained. Well, that fudges the issue. Al-Alwaki, the fellow who was assassinated in Yemen, American citizen, he wasn’t bearing arms against the United States. So it’s a very, very slippery sort of thing, susceptible of all manner of interpretation. And it’s sort of a safeguard for the Senate, House to be able to call in the army.

JAY: But one of the things it seems to do is to give clear authority for what had previously be considered, probably, illegal rendition. This is saying that anybody could be picked up under this suspicion and sent to any foreign country or foreign entity. So one could think it even could happen to US citizens, although, as we know, it happened to Maher Arar, the Canadian who was sent to Syria. This seems to actually broaden those powers.

MCGOVERN: It does. And, you know, no longer is there a distinction between regular rendition and extraordinary rendition. Regular rendition, which happened before 9/11, you did a slight judicial process to determine that somebody was probably guilty and that there was reasonable cause to pursue them in a foreign country and to render them to whomever was appropriate. The extraordinary rendition blew that out of the water, and now, of course, this allows even more looseness in those interpretations. It’s really very noxious. And one has to wonder why the Senate, why the Congress would be so intent on enacting this kind of repressive legislation. And you try to figure it out. Just today before we talked, I’m thinking, well, they must be scared, they must be really scared. And the question is whether the president too will be scared and whether he’ll sign it or not.

JAY: Yeah. And the question is: why now? After ten years of this, what exactly–what problem are they actually trying to solve here? Now, just to get clear on the process, the Senate has passed it, the House has not. It goes to the House now. Apparently, there’s some rumblings that Obama might veto this, although it’s hard to believe that, given his history on these issues. What have you heard on this score?

MCGOVERN: Well, I heard that some of the doctors at GW Hospital have been asked to prepare to implant a backbone into President Obama. But I think it’s too late for that. My guess is that he’ll cave like he usually does and sign the bill. His spokespeople are saying, well, he’s being advised to maybe veto it. But–I’m no expert on this kind of thing, but my guess is that he’ll sign it.

JAY: Right. Now, if you dig into the bill a little further, you could have a scenario where a US citizen is arrested by military intelligence, or a non-US citizen. I think it’s–I know Americans are particularly interested in what happens to US citizens, but I think people, we should be as concerned about the violation of rights of anybody, not just Americans. But the issue here is that they can be arrested, they can be sent to foreign countries, they can be held without trial. The issue of the definition of what–who can be held here, it seems so blurred. And I guess the point here that doesn’t–that may not get talked about enough in this story is just how powerful and big military intelligence is. I think when people think about this, they think of soldiers on bases. But if I understand it correctly, military intelligence is actually far bigger than the CIA, the FBI, and most of the other intelligence apparatus. Is that right?

MCGOVERN: Well, it is. And you haven’t mentioned the Homeland Security outfit that replicates what the FBI does and some of what the CIA does. Now you have these little nexuses where you have the CIA, FBI, Homeland Security, and local police enforcement sitting together, which is precisely what they tried to prevent after the abuses that were uncovered by Sy Hersh and others back in the mid ’70s. There was supposed to be no CIA involvement, for example, in domestic law enforcement activity. Now there is with these little junctions, that they all sit together and try to figure out what they can do to these young kids in Oakland.

JAY: Yeah, there’s some evidence that military intelligence has been involved in the suppression or training of how to deal with the Occupy movements. We certainly know in the G-20 in Toronto that the Canadian military intelligence was fully involved, publicly, in fact. There was no secret about it. Canadian military intelligence was part of the main coordinating Integrated Security Unit with the RCMP and the Toronto Police. And we know there’s a very close relationship between the Canadian military intelligence and the American military intelligence. So this intersection with mass protest and such, domestic dissent, is not such a reach.

MCGOVERN: Yeah. And the mayor of Oakland let slip the fact that she and 17 other law enforcement people that are from around the other states coordinated their responses to the Occupy movement. So you have a federal role in this which is also very noxious. And, of course, the army is a federal agency. So it’s a matter of reassurance for people who want to tamp down whatever reaction, whatever democracy there is left in this country, to be able to call in the Armed Forces.

JAY: And what do you make of mainstream media’s coverage of this piece of legislation?

MCGOVERN: Well, it has been pretty much absent. There has been no real commentary. The fifth estate, what I call the fifth estate, the estate in the ether, the internet, has had several very, very good articles, but how many Americans read those articles? How many are exposed to them? I just don’t know. I find it distressing that the mainstream media, which has a stake in all this, of course, has been noticeably silent.

JAY: Thanks very much for joining us, Ray.

MCGOVERN: You’re most welcome.

JAY: Thank you for joining us on The Real News Network.

End of Transcript

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Ray McGovern is a retired CIA officer and was employed under seven US presidents for over 27 years, presenting the morning intelligence briefings at the White House under Presidents Ronald Reagan and George H.W. Bush.