This is why the National Defense Authorization Act (NDAA), which was contested by me and three other plaintiffs before Judge Katherine B. Forrest in the U.S. District Court for the Southern District of New York on Thursday, is so dangerous. This act, signed into law by President Barack Obama last Dec. 31, puts into the hands of people with no discernible understanding of legitimate dissent the power to use the military to deny due process to all deemed to be terrorists, or terrorist sympathizers, and hold them indefinitely in military detention. The deliberate obtuseness of the NDAA’s language, which defines “covered persons” as those who “substantially supported” al-Qaida, the Taliban or “associated forces,” makes all Americans, in the eyes of our expanding homeland security apparatus, potential terrorists. It does not differentiate. And the testimony of my fellow plaintiffs, who understand that the NDAA is not about them but about us, repeatedly illustrated this.
Alexa O’Brien, a content strategist and information architect who co-founded the U.S. Day of Rage, an organization created to reform the election process and wrest it back from corporate hands, was the first plaintiff to address the court. She testified that when WikiLeaks released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, she discovered that the company was attempting to link her and her organization to Islamic radicals and websites as well as jihadist ideology.
Last August there was an email exchange between Fred Burton, Stratfor’s vice president for counterterrorism and corporate security and a former deputy director of the counterterrorism division of the State Department’s Diplomatic Security Service, and Thomas Kopecky, director of operations at Investigative Research Consultants Inc. and Fortis Protective Services LLC. In that exchange, leaked Feb. 27 by WikiLeaks, Kopecky wrote: “I was looking into that U.S. Day of Rage movement and specifically asked to connect it to any Saudi or other fundamentalist Islamic movements. Thus far, I have only hear[d] rumors but not gotten any substantial connection. Do you guys know much about this other than its US Domestic fiscal ideals?”?
Burton replied: “No, we’re not aware of any concrete connections between fundamentalist Islamist movements and the Day of Rage, or the October 2011 movement at this point.”
But that changed quickly. Stratfor, through others working in conjunction with the FBI, soon linked U.S. Day of Rage to al-Qaida and other terrorist groups.
In early September, U.S. Day of Rage, which supported the Sept. 17 call to occupy Wall Street, received Twitter messages that falsely accused it of being affiliated with terrorist groups. The messages came from a privately owned security and intelligence contractor, Provide Security, managed by Thomas Ryan, who works for U.S. military and government agencies, and Dr. Kevin Schatzle, a former FBI, Secret Service and New York City Police Department counterterrorism agent who is on the advisory board of a private intelligence firm that sells technology to profile and interrogate terrorism suspects. On Sept. 1 U.S. Day of Rage received three private, direct Twitter messages that read:
“Now you are really in over your head with this. Muslims from an Afghanistan Jihad site have jumped in. ...”
“You seem peaceful, but #Anonymous will tarnish that reputation and FAST! They plan to hack NYPD and Banks for #OccupyWallStreet with #RefRef.”
“Just a heads up. I watched your training videos, but do you realize the #Anonymous relationship/infiltration will cause you MANY problems.”
On Oct. 14, 2011, Provide Security’s Ryan published an article—“The Email Archive of #OccupyWallStreet Movement,” on the Andrew Breitbart Presents Big Government website page—that tied U.S. Day of Rage to al-Qaida and other terrorist groups. Ryan said in the article that he had “recruited other people to help U.S. begin the collection of data” from social media sites that included U.S. Day of Rage. The article goes on:
On August 10, 2011, the hacker group, “Anonymous” announced that it would join the Occupy Wall Street demonstrations. That’s what sparked my interest in monitoring #OccupyWallStreet.
I reached out to a colleague and asked if he would be interested in studying the protest with me. At first, it seemed disorganized, and we believed it would only be a few hundred protestors.
As we engaged in monitoring its growth, we recruited other people to help us begin the collection of data available via social media. We began mapping out key players, and monitored Anonymous’s efforts to organize protests in the San Francisco Bay area public transportation system (#opBART) in order to detect patterns of key influences.
Then, at the end of August, we were alerted by a fellow researcher that information about USDoR (U.S. Day of Rage, to which Occupy Wall Street is connected) had been posted on Shamuk and Al-Jihad, two Al-Qaeda recruitment sites. We began to take the “Occupy” protest more seriously, and dedicated more time to researching and monitoring.
Days later, Anonymous announced that it would be releasing its new DDOS (Distributed Denial of Service) tool. Because of the Al-Qaeda posting, we contacted the New York Field Office of the FBI so they could investigate the potential threat. From that point on, we decided we needed to include the Human Element of Intelligence (HUMINT), and to infiltrate the protestors to map their ties to Anonymous, and to the postings on Shamuk and Al-Jahad.
Though all this sounds like the delusions of the mentally imbalanced, or perhaps mentally impaired, it was enough to trigger a response within the twisted minds of those who work from the shadows of our security and surveillance state. O’Brien, who was working at the time as a digital media architect for a publicly traded energy efficiency firm, was told by the company’s director of federal programs, a former interrogator and foreign language specialist with the Massachusetts Army National Guard, that he had been asked about her by U.S. government agents numerous times. She was pulled off several projects and then pushed out of her job.
Now the engine of conspiracy, which feeds the machine, was in full gear. On Jan. 11, Australian Security Magazine published an article titled “Radical Islam: Global influence in domestic affairs” that directly tied U.S. Day of Rage to radical Islamic groups. It read, in part:
More recently we found the same types of activity by radical Islamists during the planning of the U.S. Day of Rage that was scheduled for September 17th 2011. While it certainly did not take root and there were none of the violent clashes that took place during the UK riots, none the less the same types of people were there seeking to influence proceedings. Those aiming to influence the U.S. Day of Rage followed a similar pattern as the group and individuals we found trying to influence groups for CHOGM [Commonwealth Heads of Government]. Most were looking to promote violent confrontation, while some were spreading low level jihadist propaganda.
One of the plaintiffs in our lawsuit, Birgitta Jónsdóttir, an Icelandic parliamentarian who has advocated transparency laws that would clear the way for WikiLeaks to operate in Iceland and helped produce a video about the 2007 Baghdad airstrike that killed two journalists and nine other civilians, did not appear in court. Author Naomi Wolf, who, along with Cornel West, has offered to join me, Noam Chomsky, Daniel Ellsberg, the Icelander and three others as plaintiffs, read Jónsdóttir’s affidavit to the court.
In January 2011 Jónsdóttir, although she is not a U.S. citizen, was served by the United States Department of Justice with a subpoena demanding information “about all [her] tweets and more since November 1st 2009.” The demanded information, which she has refused to provide, includes all mailing addresses and billing information, all connection records and session times, all IP addresses used to access Twitter, and all known email accounts, as well as the “means and source of payment,” including banking records and credit cards. The Justice Department subpoenaed records for the period from Nov. 1, 2009, to the present. The foreign minister of Iceland advised Jónsdóttir not to travel to the United States for the court hearing on Thursday, fearing she might be detained, especially after the Justice Department refused to issue a statement in writing stating that she would not be held if she appeared on American soil.
Perhaps the most chilling exchange on Thursday took place between government lawyers and Judge Forrest. The judge, who will probably rule in May, repeatedly asked for assurance that the plaintiffs would not be subject to detention under the NDAA. It was an assurance the two government lawyers refused to give. She asked U.S. Assistant Attorney Benjamin Torrance whether the government would see a book containing the sentence “I support the political goals of the Taliban” as providing “material support” for “associated forces.”
Torrance did not rule out such an interpretation.
“You are unable to say that [such a book] consisting of political speech could not be captured under [NDAA section] 1021?” the judge asked.
“We can’t say that,” Torrance answered.
“Are you telling me that no U.S. citizen can be detained under 1021?” Forest asked.
“That’s not a reasonable fear,” the government lawyer said.
“Say it’s reasonable to fear you will be unlucky [and face] detention, trial. What does ‘directly supported’ mean?” she asked.
“We have not said anything about that …” Torrance answered.
“What do you think it means?” the judge asked. “Give me an example that distinguishes between direct and indirect support. Give me a single example.”?
“We have not come to a position on that,” he said.
“So assume you are a U.S. citizen trying not to run afoul of this law. What does it [the phrase] mean to you?” the judge said.
“I couldn’t offer any specific language,” Torrance answered. “I don’t have a specific example.”
There are now 1,271 government agencies and 1,931 private companies that work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States, The Washington Post reported in a 2010 series by Dana Priest and William M. Arken. There are 854,000 people with top-secret security clearances, the reporters wrote, and in Washington, D.C., and the surrounding area 33 building complexes for top-secret intelligence work are under construction or have been built since September 2011. Investigative reporter James Bamford wrote in the latest issue of Wired magazine that the National Security Agency is building the largest spy center in the country in Bluffdale, Utah, as part of a secret NSA surveillance program code-named “Stellar Wind.” Bamford noted that the NSA has established listening posts throughout the country to collect, store and examine billions of email messages and phone calls.
If we lose this case it will hand to the vast network of operatives and agencies that investigate and demonize anyone who is not subservient to the corporate state the power to detain citizens and strip them of due process. It will permit the security and surveillance state to brand as terrorists any nonviolent protesters and movements, along with social and political critics, that in the government’s imagination have any trace of connection to al-Qaida or “associated forces.” If the National Defense Authorization Act is not reversed it will plunge us into despotism, leaving us without a voice, trapped in eddies of fear and terror, unsure of what small comment, what small action, could be misinterpreted to push us out of our jobs or send us to jail. This is the future before us. And we better fight back now while we can.