The Double Edged Sword – S. 1867 – Detention, Material Support

By Denise Simon – SUA Research Director

The 2012 Defense Authorization Bill 1867 (See summary here) just passed by the Senate was burdened with oodles of appropriations including one very important section that will keep the Guantanamo Detention Center open indefinitely. However, this is in complete conflict with the White House and the Department of Justice, and virtually nullifies the Executive Order to close it signed by Obama soon after his inauguration. Though, it is curious that despite that E.O., Guantanamo is still intact. The veto pen is coming.

In addition to the Guantanamo issue, other sections are argued to be turning the Constitution on its ear. With the mere push of a voting button in the House and Senate, and the possible signature of the President it is argued that many civil liberties will be lost. Foremost among these is the interpretation that American citizens could be held without trial if they are deemed to be of material aid to terrorist organizations by the military. No lawyers, judges, or grand juries, just indefinite incarceration at Guantanamo.

Political action organizations across the political spectrum are in a complete dither over this bill because it contains so much gray area language or to some, lacks the proper language to define certain aspects. Although absence of evidence is not evidence of absence, legal wranglers are claiming that Congress is deferring to the bench on too many issues.

Portions of this legislation of most concern for anyone paying attention are where it addresses the act of giving material or financial support to terror organizations and members. In recent years, there have in fact been several cases where American citizens were clearly guilty of these charges including John Walker Lindh, Anwar Al Walaki, Adam Gadahn, and Najibulla Zazi among many, many others.

Defense Appropriation Bill:

Consider for a moment the double edged sword this pending law represents with its many sections in question. It can on one hand be construed to be an extremely good tool for securing our nation, but at what sacrifice? Interestingly though, it may also become a very friendly legal tool to employ in a political fashion; one where certain actions recently taken by the administration could place them in legal jeopardy, and become a bludgeon to nail corrupt lawmakers and government employees in Washington DC.

Like most pieces of legislation, many lawmakers had not read the complete final version of the bills prior to voting and possibly would not have voted in the affirmative if they did. But all too often, naked ambition and/or political cowardice may have bred unintended consequences and this Defense Authorization Bill may just be a real blatant example. Those unintended and intended consequences may include the ability to take much stronger action on certain current administration personnel. To elaborate, let us begin with Eric Holder, Attorney General for the United States Justice Department.

Holder has a long history, along with many legal colleagues, where they have have provided counsel to terrorists around the world and those detained at Guantanamo, free to the inmate. Payment for counsel comes from donations or was provided pro-bono.

Covington and Burling is the law firm where Holder was a partner, and by giving that kind of aid, to non-citizen enemies of the USA, these new provisions could be construed to render future work in this regard as illegal. Holder’s old firm is a worldwide law firm, and works in partnership with many other law firms as well as the Center for Constitutional Rights, Sullivan & Cromwell, Manatt Phelps, American Constitution Society, Holland and Hurt among others. Are these firms now in jeopardy as well?

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What is “material aid and support” as the letter of the law dictates?

From Legal Information Institute – US Code PROVIDING MATERIAL SUPPORT TO TERRORISTS § 2339A.

(b) Definitions.— As used in this section—

(1) the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

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Then there are the narco-terrorism networks that are proven to be cavorting with Hezbollah, but are not formally listed on terror lists, yet Holder allowed arms to be sold and moved through the FBI and the DEA to members of these drug cartels. Many think Holder already broke existing laws and should already be out of office, and/or in prison over the Fast and Furious scandal. That operation was a boondoggle to say the least, and if this Bill is signed, activity that allows weapons to fall into the hands of these ‘terrorists’ in the future will arguably land many agents and administrators in jail.

Other actions, by other departments are similarly situated and acted in very questionable ways as well. Recently, key government officials gave aid and comfort to the enemy through the actions of their office. This includes people like our Secretary of State, Hillary Clinton.

Clinton with Libyan Rebels

There is now ample evidence that she has spread money and support to the enemy, most notably to rebel Libyans who fought our troops in other lands under the al-Qaeda flag. Some may think that is a stretch, but it is definite aid and comfort to the enemy, regardless of political purpose according to the letter of the law, and certainly would be if this bill is signed. This is especially true since it did not have the blessing and approval of Congress or the White House.

  • Please note the Arms Export Control Act is the responsibility of the State Department.
  • The Taliban cannot be excluded either when it comes to the nefarious monetary policy of Hillary Clinton.
  • In the Middle East, the same quest and generosity is also applicable as Hillary Clinton giving money to the Palestinian Authority prisoners.

Moving to another facet of giving aid and comfort, we have the case of Timothy Geithner, Secretary of the United States Treasury. The Department of the Treasury in partnership with the State Department publishes the terror list and enforces or often chooses not to enforce the money transfers and global account restrictions through the Federal Reserve banks in coordination with the Federal Reserve Chairman Ben Bernanke.  Allowing domestic organizations and companies to wire money to foreign terror networks through any of the Federal Reserve banks occurs constantly and both Geithner and Bernanke are at the throttle controls by pacing, approving, and tracking these monies.

It should also be no surprise that the government runs a program called the Black Budget, which of course allocated money and spends it on missions and for causes that no one is supposed to know about. Congress allegedly does not have a hand in this cash cache but the dollars still move and countless agencies move it without full disclosure.  In addition, any member of the House or the Senate that is assigned to committees that have some oversight of government dollars in the aspect of foreign policy and national security vote to allocate and spend money as well, and often that lands in the hands of terror networks and members.

In summary, countless members of the United States government have a role in money distribution either by committee, by vote, and/or allocations that do not exempt them from the new concerns of this pending law under the 2012 Defense Authorization Act. Only the President and the Vice President can invoke Executive Privilege and in recent history it has been applied to those working at the White House, yet it has not been challenged that they get exemption from prosecution in regard to Border Agents or aiding and abetting known terror cells and members. If lawmakers want to play the game, it takes two to dance, and lawyers are available on both sides. We can use the same laws and rules to play as they use them as well.

Given the polar division of this country, embracing and using the U.S. Constitution to carry out laws and agendas, this pending law could and should work in our favor to force the will of the people upon the government as intended.  We are in the vortex of being victims of local and federal law being applied unlawfully against law-abiding citizens. The Defense Authorization Act clearly appears to have text that ups the ante once again on citizens.

We cannot forget that Federal employees are also citizens and should the un-intended consequences apply, and in fact are intended as a quiet mission, we may have yet a major lawful tool that could implicate Obama, Clinton, Holder, Geithner, and more by applying this law.  Legal scholars and courts may argue these aspects for a long time to come, but the very threat of their actions in financially supporting terrorists and networks, intentionally or otherwise may be a springboard to get their attention.

Key Links for additional reference:

  1. Named terror networks  
  2. American Jihad Terrorism, Congressional Report 
  3. Nigeria and Boko Harem
  4. Kerry Lugar aid to Haqqani conditions without conditions
Edited by Scott W. Winchell