PANDA NDAA Civil Liberties Watch


Five years ago, just five short years before the recent outpourings of praise and grief by U.S. leaders at his funeral, Nelson Mandela was taken off the U.S. Foreign Terrorist list. It was just three years ago, in 2010, that the Supreme Court finally outlawed speaking to anyone on the list.

The case was “Holder vs. Humanitarian Law Project.” Activists with the Humanitarian Law Project, along with other defendants, had been fighting for decades in the courts for a clear affirmation of their right to speak, without risk of imprisonment, to people and groups on the U.S. State Department’s “list of Foreign Terrorist Organizations” – the list on which Mandela, with his “African National Congress,” had been since 1988.

Mandela was put on the list by Ronald Reagan’s State Department, already some twenty-six years into a jailing by the South African government which had allegedly begun with an arrest assisted (in a charge never proven but impossible to dismiss) by John F. Kennedy’s CIA. In any case, White House support for South Africa’s regime was a very lengthy tradition.

Mandela’s ANC had turned to violence and even, with Mandela out of the loop in his dungeon cell, briefly to violence against civilians. But the group would change strategy again – this time for good – when stubborn nonviolent action, as it so often does, began to prove itself an indispensable, unstoppable force for overthrowing a government’s tyranny.

This was the very kind of shift in strategy which in 1998 the Humanitarian Law Project was hoping to bring about in Pakistan. It had meant to go to Pakistan helping to convince rebels from the disrespected Kurd minority to give up the bullet for the ballot, to make peace and make the change into a nonviolent opposition party – just as Mandela’s party, four years into his presidency at that point, had already more than done.  But the Kurdish rebels were to be found alongside Mandela on the U.S. list of Foreign Terrorist Organizations.

Around this time a group of Sri Lankan Americans wanted to send some volunteer doctors to the hardest-hit, coastal region of Sri Lanka following a devastating storm disaster there. Sadly rebels controlled that area, rebels who would have to give permission, and who, like the Pakistani Kurds, like Mandela’s ANC, were on the U.S. terror list.

In the then-law-of-the-land, either kind of activity carried a prison sentence of up to fifteen years, as a crime called “Material Support for Terror,” vaguely defined to include not only humanitarian aid but even “advice” to groups the State Department considered terrorist. As a result, these groups of concerned Americans had gone, not overseas, but into the courts to challenge the law.

Lower courts sided with them, of course, striking down existing “Material Support” law as outrageously and starkly unconstitutional, not merely in light of the First Amendment’s absolute ban on laws abridging freedom of speech, but also the Supreme Court’s own far less steadfast ruling from the 1960s that the government could only ever punish speech if that speech was both meant and likely to incite “imminent lawless action.” How could Americans pleading for lawful action and with all their might against lawless violence have these free speech rights taken away?

Undeterred, present Attorney General Eric Holder took the case to the Supreme Court, pushing vigorously for the kind of “Holder vs. Humanitarian Law Project” decision which the Court obligingly handed down in 2010 – in what many consider the greatest blow to American free speech rights in a half-century.  The decision confirmed the illegality of speaking not merely with anyone convicted of terrorism but with anyone merely accused of it by the White House, as Mandela had been.

Because the list is assembled solely by the Presidentially-appointed Secretary of State and her (or his) State Department. In 2008 an act of Congress finally took Mandela off the list, with the no-doubt-sincere approval of then-Secretary-of-State Condoleezza Rice. What is little recognized is that she could have taken him off the list without any Congressional approval, as could any of her predecessors, Republican or Democrat.

Rice had indeed complained of acute embarrassment at needing to issue Mandela and his colleagues, past and present leaders of a friendly nation, special permission as alleged “terrorists” to enter the United States.  U.S. Presidents had arguably been committing a crime by so eagerly conferring with Mandela before the cameras – the crime, under U.S. law, of material support for terrorism.  Rice nonetheless waited for a bipartisan act of Congress, not just as a gesture to those still opposing (as any American had and has the right to oppose) aspects of Mandela’s politics and strategy: but also concealing the basic fact that her office, and ultimately the President, oversees the list of who, especially following the 2010 Supreme Court decision, Americans may or may not talk to. 

Long before 9/11, the word “terror” had a special power to compel otherwise freedom-loving Americans (although far likelier to die in a traffic accident or bathtub slip than a terrorist outrage) to forget the legacy and burden of liberty won for them by countless generations in the face of real dangers, people in our own country and around the world who didn’t let every threat of danger however slight deter them from putting their love of liberty into practice: people who “terror” didn’t govern, who would not allow that alarming word alone to dictate to them, with their government’s voice, who to praise and who to fear being caught speaking with.

The 2012 National Defense Authorization Act or “NDAA” was signed into law on the last day of 2011, while the media raptly focused on a big glowing ball above Times Square, and sections of the Act established the President’s right to imprison any U.S. person, citizen or not, without charge, trial, or even a release date, on the President’s mere accusation that that person was involved in, or merely “supporting” terrorism.

The 2012 NDAA went well beyond the already-blank check given the President by Congress’ war authorization in the panicked days after 9/11. The NDAA suspended the rule of constitutional law not only for members of Al Quaeda or the Taliban but for “a person who was a part of or substantially supported” them, or supported “associated forces” fighting either the U.S. or its allies, seeming under the language to include “any person who has committed a belligerent act” or has directly “supported” hostilities in aid of “enemy forces.”

Under loopholes large enough for any Presidential agenda to march through, imprisonment for life without trial is now the penalty for “support” of terrorists, and as we learned in 2010, that actually, technically, now means talking to them. A terrorist, imprisonable without trial, can be anyone who has dared to speak with another alleged terrorist.

Or to speak within terrorists’ earshot.   The charge laughed out of then-Private-Bradley-Manning’s court martial, but argued vigorously throughout the trial by Administration lawyers, was that by getting sensitive information to the New York Times and its website, where (they alleged) Al Quaeda had read it like everyone else, Private Manning was guilty “aiding the enemy.” To our current White House and to any that we can anticipate electing, talking to reporters, and through them to the U.S. public, is support for terror.

Even Edward Snowden has been smeared from within both parties and on surely every news channel as a terror supporter merely for informing the public about the breadth of government surveillance – as have the key renegade journalists – invariably now hiding outside our nation’s borders – who dared to get his and Manning’s disclosures printed in the national media. The President isn’t required to imprison, and for life, every such “supporter of terror,” but increasingly, especially when the national climate shifts to accommodate each new infringement of our rights, he has the power to do so with impunity.

Now let’s be perfectly honest: If we keep our own heads down, if we do nothing for ourselves, our nation, or each other, in the way of helping to decide any issue that matters in America, we should be safe from being imprisoned as terrorists by our government.

But everyone who fights for us, everyone who loves our liberty as, it too often seems, we do not, are increasingly prone to being imprisoned for the crime of speech – speech which, if it matters so much to our government, is perfectly likely to be speech on our behalf.We don’t know what will happen to the laws, the fabric of life, the economy, the government of America in future years.

We don’t know which of our future U.S. governments will wish to imprison using the laws we’ve allowed them to create, and we don’t know what desperate need we will have of people willing to stand up for our liberties, for our lives, our communities, our families, our democracy. But there is a jail cell – or worse – already prepared – prepared by these changes to our laws – for the best of them.  And it was prepared on our watch.

If we didn’t stand for Mandela’s freedom, whether we liked or loathed the whole of his politics, and if we won’t stand for the the Edward Snowdens, or the Private Mannings, or the Glen Greenwalds and Julian Assanges, then – it’s a cliché by now, but only because it’s so terrifyingly, eternally true: it cannot but follow that soon there will be no-one left to stand for our freedom.  To stand for us. Courage isn’t the absence of fear: it is standing up in spite of fear. It is standing up in spite of terror.  In the face of terror, it is the only honorable response.  It doesn’t wait for terror to vanish clean away before doing what is right, and it doesn’t point at terror to defend craven behavior.

The greatest threat to America is not terror but cowardice, and the outrages of government corruption and control which our cowardice, if we indulge it, renders utterly inevitable.We can see our choice now.

We can let terror rule us and leave the brave, the patriotic, the freedom-loving and -serving to stand alone, more likely than not in prison until death, while our liberties vanish forever; or we can show courage in the face of terror – and of our own government’s disapproval – and make America a friend once more to those who’ve been humbly serving liberty – and serving us – all along.Mandela served 27 years in prison.

Those prison cells await new tenants. Courage, and not terror, is the key.


Sean Reynolds is a staff writer and local campaign coordinator with People Against the NDAA (PANDA):