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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Washington. President Obama is expected any day to sign the 2012 National Defense Authorization Act, which amongst other things authorizes spending of something over $650 billion. There’s been very little debate about whether or not this much money should be spent on the military, the whole posture of the U.S. military in 2012. But what there has been some debate about–a little bit, at least–has been a specific provision in this bill which seems to authorize the extraordinary powers of detention to the U.S. military. Now to talk about all of this is David Swanson. David joins us from his home in Richmond, Virginia. Thanks, David.

DAVID SWANSON, AUTHOR AND ACTIVIST: Thank you. Charlottesville.

JAY: Charlottesville. Sorry. I had you–moved you. So let’s just go over again, quickly, the basic features of this amendment that people are concerned about.

SWANSON: Well, it fundamentally throws out Article 3, Section 3 of the Constitution and amendments 4 through 8, the bulk of our Bill of Rights. Out goes the right to a trial, a speedy trial, a trial by a jury of your peers. You can–you meaning any human being, including U.S. legal residents–can be held, imprisoned, indefinitely for life without trial by the president and by the military.

JAY: So let’s–just to remind people what’s in this, if I understand it correctly, if–I guess it’s the Secretary of Defense. Or is it the Department of Justice? If you are deemed to be a supporter–not a militant or activist, but–which, of course, is also included, but if you’re a supporter of al-Qaeda, the Taliban, or associated forces, which is, I understand, not defined, you can be detained by the military and held indefinitely. Go on. Have I got it right, David?

SWANSON: Well, the problem is that you could be anybody at all. You could be someone who was engaged in plotting terrorism. You could be an actual traitor to the United States of America. You could be someone who had donated money to a group that was associated with a group that was deemed terrorist. Or you could be absolutely innocent of anything remotely related. The point is that you don’t get a trial. This is on the basis of accusation alone. So, conceivably–and it doesn’t take a wild imagination–you could be somebody’s political opponent and you could be imprisoned for life without a trial.

JAY: And if I understand it correctly, this also applies to U.S. citizens. There was some question whether or not it did, but it seems that it does.

SWANSON: Well, the president, according to Senator Carl Levin and others–and this has not been disputed by the White House–the president asked that there be no exception for U.S. citizens or U.S. legal residents. And a couple of amendments were voted down in the Senate that would have put that exception in place. After passage of the bill, Senator Feinstein introduced legislation that has quite a few cosponsors that would specifically do just that, carve out an exception for legal residents of the United States, the other 95 percent of humanity be damned. So there is no dispute (although you will find those Obama supporters who simply choose to deny it) that this does indeed apply to everyone. And this is not a change in this president’s policy, who has already asserted the right to imprison and to assassinate (and acted on that power) U.S. citizens.

JAY: Now, the politics of this is a little strange. Apparently, the head of the FBI is against this legislation. The head of the CIA is against this legislation. Apparently the secretary of defense has had some criticisms of the legislation. There’s some–New York Times says even in the army’s not so happy about the fact that they are now the only ones that are supposed to detain anyone charged with terrorism. The FBI is not happy about it, ’cause it’s all being handed to the military. And in a recent New York Times editorial, they called–they essentially say President Obama’s caved on this. So there’s a lot of forces that are against this legislation, yet it more or less sailed through the Senate and the House.

SWANSON: Well, note that whenever President George W. Bush did something that was wildly unpopular and unconstitutional, we said he was energetically doing it to us. Whenever President Obama does the same sort of thing and worse, we say he’s caving in to evil forces, because it couldn’t possibly be him. But look at what happened. He threatened to veto [incompr.] his advisors not clearly and unambiguously but very strongly threatened the possibility of a veto. And then there was the Senate’s passage, and they again threatened to veto. And then there was a conference committee, and they withdrew the threat of the veto. Now, what changed in the conference committee? For one thing, they put in a little measure that gave the FBI the power to do its job regardless of this bill. That had been missing, and the FBI, as you say, had been quite upset about that. There are good and bad arguments for why that should in fact have been added in there. And they made a little change to who would get to waive the use of military tribunals in order to provide the president with what he calls flexibility and what the authors of our Bill of Rights called tyranny. They switched from the secretary of defense, in consultation with a number of other cabinet officials, to the president and the president alone having the power to waive sending someone to a military tribunal. That is, he can pursue his form of vigilante justice against someone outside of that forum. And that seemed to satisfy the White House. This was not a veto threat over the elimination of our rights, and we got our rights back, and the veto threat went away–that’s a mirage.

JAY: Yeah, it seems that the only real threat of veto had to do with some restriction on the rights of the president and not on the rights of other citizens.

SWANSON: That’s absolutely right. And that’s why it’s very likely that we will also see an unconstitutional law altering signing statements, when and if the president signs this into law. If he sees anything remaining in the language that restricts his unlimited power in any way, he will announce his failure to recognize that in a signing statement.

JAY: Do you get any sense of why now? I mean, this is–I mean, I would have understood the psychology of this piece of legislation five, six, seven, eight years ago, but why now after all of this time?

SWANSON: Well, this is not a leap from absolute adherence to the Bill of Rights and standards of law to absolute defiance. This is one step in a gradual process. This is a president who from the earliest months in office claimed the right to imprison people without charge. He claimed that right standing in the national archives in front of the Constitution, who has maintained the power to rendition people to other countries where they might be tortured and abused, who has issued an executive order claiming the right to imprison people without trial, who has in fact asserted the power to assassinate anyone, including U.S. citizens, and acted on it. So what this does is to codify into law this understanding that has developed primarily under presidents Clinton, Bush, and Obama that these powers belong to a president. And this is a bill that goes so far as to say this doesn’t alter existing law in any way. Well, then, why pass it at all? Because it does clarify specific abuses as being recognized in detail by the United States Congress in law.

JAY: And I guess the other important part of this is that, first of all, the American military intelligence apparatus is bigger, if I understand it correctly, than all the other intelligence apparatuses put together–CIA, FBI. Military intelligence is far larger. And now it’s–also seems to give the military intelligence a role on American soil, including, as we said, U.S. citizens, and including being the only agency now that’s supposed to detain people. It’s an extraordinary change in things, but with very little attention in mainstream media. It’s barely being talked about.

SWANSON: Oh, this is what is absolutely incredible, if predictable. When the two big political parties agree on something, no matter how outrageous it might be, it’s not news. It’s only when there’s a disagreement between them that it’s news. And you have so many individuals and organizations that will not oppose something if a Democratic president is for it, and so many others that will not oppose something if a Republican House of Representatives is for it.

JAY: Now, there are people that are kind of hitting the streets about this. I saw some news about the Occupy Tampa is doing something. Did you get a–what other kind of opposition is there to this legislation?

SWANSON: Well, I work for RootsAction.org, which is very active against this. The ACLU is to be applauded for its absolutely principled opposition to this. Both of those groups are demanding a veto. And there are all kinds of local organizations on board with that. But there are many, many missing, including the bulk of those organizations that tend to take their directions from the Democratic Party and who without a doubt would be opposing this very, very passionately were the president at this moment a Republican, which is incredibly crazy, in that these powers will be passed on to every following president, regardless of which party he or she comes from.

JAY: I guess it should be noted some of the libertarians in the Republican Party did oppose this. Rand Paul spoke, I think, quite vigorously against this legislation.

SWANSON: Well, overwhelmingly, the senators of both parties voted for it, although you had a handful of exceptions from each party. And in the House, you had about 40-some Republicans vote no, including my congressman here in southern Virginia, and you had the Democrats absolutely split, 93 to 93. So, you know, giving your money and your effort to the Democratic Party now is exactly like buying a lottery ticket. It doesn’t stand for one side or the other on this.

JAY: Thanks for joining us, David.

SWANSON: Thank you.

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

End

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