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The Last Chance to Stop the NDAA

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Posted on Sep 2, 2013
Illustration by Mr. Fish

By Chris Hedges

I and my fellow plaintiffs have begun the third and final round of our battle to get the courts to strike down a section of the National Defense Authorization Act (NDAA) that permits the military to seize U.S. citizens, strip them of due process and hold them indefinitely in military facilities. Carl Mayer and Bruce Afran, the lawyers who with me in January 2012 brought a lawsuit against President Barack Obama (Hedges v. Obama), are about to file papers asking the U.S. Supreme Court to hear our appeal of a 2013 ruling on the act’s Section 1021.

“First the terrorism-industrial complex assured Americans that they were only spying on foreigners, not U.S. citizens,” Mayer said to me recently. “Then they assured us that they were only spying on phone calls, not electronic communications. Then they assured us that they were not spying on American journalists. And now both [major political] parties and the Obama administration have assured us that they will not detain journalists, citizens and activists. Well, they detained journalist Chris Hedges without a lawyer, they detained journalist Laura Poitras without due process and if allowed to stand this law will permit the military to target activists, journalists and citizens in an unprecedented assault on freedom in America.”

Last year we won round one: U.S. District Judge Katherine B. Forrest of the Southern District of New York declared Section 1021 unconstitutional. The Obama administration immediately appealed her ruling and asked a higher court to put the law back into effect until Obama’s petition was heard. The appellate court agreed. The law went back on the books. I suspect it went back on the books because the administration is already using it, most likely holding U.S. citizens who are dual nationals in black sites in Afghanistan and the Middle East. If Judge Forrest’s ruling were allowed to stand, the administration, if it is indeed holding U.S. citizens in military detention centers, would be in contempt of court.

In July 2013 the appellate court, in round two, overturned Forrest’s ruling. All we have left is the Supreme Court, which may not take the case. If the Supreme Court does not take our case, the law will remain in place unless Congress strikes it down, something that federal legislators have so far refused to consider. The three branches of government may want to retain the ability to use the military to maintain control if widespread civil unrest should occur in the United States. I suspect the corporate state knows that amid the mounting effects of climate change and economic decline the military may be all that is left between the elite and an enraged population. And I suspect the corporate masters do not trust the police to protect them.

If Section 1021 stands it will mean that more than 150 years of case law in which the Supreme Court repeatedly held the military has no jurisdiction over civilians will be abolished. It will mean citizens who are charged by the government with “substantially supporting” al-Qaida, the Taliban or the nebulous category of “associated forces” will be lawfully subject to extraordinary rendition. It will mean citizens seized by the military will languish in military jails indefinitely, or in the language of Section 1021 until “the end of hostilities”—in an age of permanent war, for the rest of their lives. It will mean, in short, obliteration of our last remaining legal protections, especially now that we have lost the right to privacy, and the ascent of a crude, militarized state that serves the leviathan of corporate totalitarianism. It will mean, as Forrest pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention.

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“As Justice [Robert] Jackson said in his dissent in the Korematsu case, involving the indiscriminate detention of Japanese-American citizens during World War II, once an unconstitutional military power is sanctioned by the courts it ‘lies about like a loaded weapon, ready for the hand of any authority,’ ” Mayer said.

In our lawsuit the appellate court never directly addressed the issue of using the military to hold citizens and strip them of due process—something that is clearly unconstitutional. Instead, the court held that I and the other plaintiffs did not have standing to bring the case. It said that because none of us had been imminently threatened with arrest we had no credible fear. This was an odd argument. When I was a New York Times reporter I was, as stated in court, arrested and held by the U.S. military in violation of my First Amendment rights as I was covering conflicts in the Middle East. In addition I was briefly detained, without explanation, in the Newark, N.J., airport by Homeland Security as I returned from Italy, the court was told.

During the five years I covered the war in El Salvador the Reagan administration regularly denounced reporters who exposed atrocities by the Salvadoran military as “fifth columnists” for the rebel movement, a charge that made us in the eyes of Reagan officials at the very least accomplices to terrorism. This, too, was raised in court, as was the fact that during my seven years as a reporter in the Middle East I met regularly with individuals and groups, including al-Qaida, that were considered terrorists by the U.S. government. There were times in my 20-year career as a foreign correspondent, especially when I reported events or opinions that challenged the official narrative, that the U.S. government made little distinction between me and groups that were antagonistic to the United States. In those days there was no law that could be used to seize and detain me. Now there is.


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