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The Post-Constitutional Era

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Posted on May 4, 2014

By Chris Hedges

Activist Lauren DiGioia is arrested Jan. 3, 2012, during a demonstration in New York City’s Grand Central Station held to call attention to the National Defense Authorization Act, signed by President Barack Obama on the previous New Year’s Eve. (AP/Mary Altaffer)

The U.S. Supreme Court decision to refuse to hear our case concerning Section 1021(b)(2) of the National Defense Authorization Act (NDAA), which permits the military to seize U.S. citizens and hold them indefinitely in military detention centers without due process, means that this provision will continue to be law. It means the nation has entered a post-constitutional era. It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power—one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed—a poll by OpenCongress.com showed that this provision had a 98 percent disapproval rating—is a cruel joke. And it means that if we do not rapidly build militant mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty. 

“In declining to hear the case Hedges v. Obama and declining to review the NDAA, the Supreme Court has turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America,” said attorney Carl Mayer, who along with Bruce Afran devoted countless unpaid hours to the suit. “This is a major blow to civil liberties. It gives the green light to the military to detain people without trial or counsel in military installations, including secret installations abroad. There is little left of judicial review of presidential action during wartime.”

Afran, Mayer and I brought the case to the U.S. Southern District Court of New York in January 2012. I was later joined by co-plaintiffs Noam Chomsky, Daniel Ellsberg, journalist Alexa O’Brien, RevolutionTruth founder Tangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist Kai Wargalla.

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Later in 2012 U.S. District Judge Katherine B. Forrest declared Section 1021(b)(2) unconstitutional. The Obama administration not only appealed—we expected it to appeal—but demanded that the law be immediately put back into effect until the appeal was heard. Forrest, displaying the same judicial courage she showed with her ruling, refused to do this.

The government swiftly went to the U.S. Court of Appeals for the 2nd Circuit. It asked, in the name of national security, that the court stay the district court’s injunction until the government’s appeal could be heard. The 2nd Circuit agreed. The law went back on the books. My lawyers and I surmised that this was because the administration was already using the law to detain U.S. citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia and Yemen. The administration would have been in contempt of court if Forrest’s ruling was allowed to stand while the federal authorities detained U.S. citizens under the statute. Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.

The 2nd Circuit overturned Forrest’s ruling last July in a decision that did not force it to rule on the actual constitutionality of Section 1021(b)(2). It cited the Supreme Court ruling in Clapper v. Amnesty International, another case in which I was one of the plaintiffs, to say that I had no standing, or right, to bring the NDAA case to court. Clapper v. Amnesty International challenged the secret wiretapping of U.S. citizens under the FISA Amendments Act of 2008. The Supreme Court had ruled in Clapper that our concern about government surveillance was “speculation.” It said we were required to prove to the court that the FISA Act would be used to monitor those we interviewed. The court knew, of course, that the government does not disclose whom it is monitoring. It knew we could never offer proof. The leaks by Edward Snowden, which came out after the Supreme Court ruling, showed that the government was monitoring us all, along with those we interviewed. The 2nd Circuit used the spurious Supreme Court ruling to make its own spurious ruling. It said that because we could not show that the indefinite-detention law was about to be used against us, just as we could not prove government monitoring of our communications, we could not challenge the law. It was a dirty game of judicial avoidance on two egregious violations of the Constitution.

In refusing to hear our lawsuit the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. Now, a U.S. citizen charged by the government with “substantially supporting” al-Qaida, the Taliban or those in the nebulous category of “associated forces”—some of the language of Section 1021(b)(2)—is lawfully subject to extraordinary rendition on U.S. soil. And those seized and placed in military jails can be kept there until “the end of hostilities.”

Judge Forrest, in her 112-page ruling against the section, noted that under this provision of the NDAA whole categories of Americans could be subject to seizure by the military. These might include Muslims, activists, Black Bloc members and any other Americans labeled as domestic terrorists by the state. Forrest wrote that Section 1021(b)(2) echoed the 1944 Supreme Court ruling in Korematsu v. United States, which supported the government’s use of the military to detain 110,00 Japanese-Americans in internment camps without due process during World War II.


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