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Fighting the Militarized State

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Posted on Mar 30, 2014

By Chris Hedges

(Page 2)

The brief argues that journalists are already protected under Article 79 of Additional Protocol I to the Geneva Conventions. This protocol calls for journalists to be treated as civilians. But this last assurance has no legal weight. The United States never ratified Additional Protocol I. Finally, the government attorneys selectively use the case Hamdi v. Rumsfeld, which permits the detention of a U.S. citizen only if he or she is an enemy combatant engaged in an active armed conflict with U.S. forces. They cite the Hamdi case to argue that the government has the legal authority to order the military to detain U.S. citizens who “substantially support” a terrorist group.

The government in the brief makes it plain that all of us can be subject to this law:

Petitioners further assert that at the initial hearing in the district court, the government declined to offer assurances that they would not be detained under any circumstances. Pet. 14, 34-38. But no legal principle requires the government to provide litigants with such advance assurances or otherwise to delineate the bounds of its authority—particularly in the context of armed conflict—in response to speculative fears of harm asserted in litigation.

“The brief argues that the government reserves the right to use the military to detain and indefinitely hold journalists under this law, although the 2nd Circuit stated that the law did not apply to U.S. citizens,” Mayer told me Sunday. “We have already seen journalists such as [you] and Laura Poitras detained and denied access to a lawyer and due process. This law will make legal any such detentions. It will permit the military, on American soil, to throw journalists and activists in a military prison without trial or due process.”

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If Section 1021(b)(2) is not struck down by the Supreme Court it will effectively overturn nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. A U.S. citizen charged by the government with “substantially supporting” al-Qaida, the Taliban or those in the nebulous category of “associated forces” will be lawfully subject to extraordinary rendition on U.S. soil. Arrested citizens will languish in military jails, in the language of Section 1021(b)(2), until “the end of hostilities.”

This obliteration of the right to due process and a fair hearing in a court of law, along with the mass surveillance that has abolished our right to privacy, will be the legal foundation of our militarized, corporate state. Judge Forrest warned in her 112-page opinion that whole categories of Americans could, under this law, be subject to seizure by the military. She drew parallels between Section 1021(b)(2) and Korematsu v. United States, the 1944 Supreme Court ruling that supported the government’s use of the military to detain 110,00 Japanese-Americans in internment camps during World War II. Our case offers the court an opportunity, as several lawyers have pointed out, to not only protect almost 150 years of domestic law that forbids the military to carry out domestic policing but to repudiate the shameful Korematsu decision.

Once arbitrary and indefinite detention by the military is lawful, the government will use it. If we do not win this case, all those deemed to be hostile or critical of the state, including some Muslims, journalists, dissidents and activists, will find themselves under threat.

I spent 20 years as a foreign correspondent, 15 of them with The New York Times. I interviewed numerous individuals deemed by the U.S. government to be terrorists, including some members of al-Qaida, and traveled with armed groups labeled as terrorist organizations. When I reported the statements and activities of these individuals and groups, U.S. officialdom often made little distinction between them and me. This was true during the wars in Central America. It was true in the Middle East. And it was true when I covered global terrorism. There was no law at the time that permitted the government, because of my work as a reporter, to order the military to seize and detain me. Now there is. This law, if it is not struck down, will essentially replace our civilian judiciary with a military one. Those targeted under this law will not be warned beforehand that they will be arrested. They will not have a chance to get a lawyer. They will not see the inside of a courtroom. They will simply vanish.

Editor’s note: Because of an editing error, an earlier version of this column incorrectly said Chris Hedges had traveled with units of al-Qaida.

 


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