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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

(Page 2)

Journalist Alexa O’Brien, who joined the lawsuit as a plaintiff along with Noam Chomsky, Daniel Ellsberg and others, was incorrectly linked by the security and surveillance state to terrorist groups in the Middle East. O’Brien, who doggedly covered the trial of Chelsea (formerly Bradley) Manning, co-founded US Day of Rage, an organization dedicated to electoral reform. When WikiLeaks in February 2012 released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, it was revealed that the company was attempting to tie O’Brien and her organization to Islamic radicals and websites as well as jihadist ideology. Fred Burton, Stratfor’s vice president for counterterrorism and corporate security and a former deputy director of the counterterrorism division of the State Department’s Diplomatic Security Service, and Thomas Kopecky, director of operations at Investigative Research Consultants Inc. and Fortis Protective Services LLC, had an email exchange over this issue. Kopecky wrote: “I was looking into that US Day of Rage movement and specifically asked to connect it to any Saudi or other fundamentalist Islamic movements. Thus far, I have only hear[d] rumors but not gotten any substantial connection. Do you guys know much about this other than its US Domestic fiscal ideals?” Burton replied: “No, we’re not aware of any concrete connections between fundamentalist Islamist movements and the Day of Rage, or the October 2011 movement at this point.” But that soon changed. Stratfor, through others working in conjunction with the FBI, falsely linked US Day of Rage to al-Qaida and other Islamic terrorist organizations. Homeland Security later placed her group on a terrorism watch list.

This will be the standard tactic. Laws passed in the so-called war on terror will be used to turn all dissidents and activists into terrorism suspects, subjecting them to draconian forms of state repression and control. The same tactic was used during the anti-communist hysteria of the 20th century to destroy union leaders, writers, civil rights activists, intellectuals, artists, teachers, politicians and organizations that challenged entrenched corporate power.

“After 12 years of an undeclared permanent war against an undefined enemy and multiple revelations about massive unconstitutional spying by the government, we certainly hope that the Supreme Court will strike down a law that replaces our civilian system of justice with a military one,” said Mayer. “Unless this happens there will be little left of judicial review during wartime.”

Afran, a law professor at Rutgers University, asked last week during a conversation with me: “Does the Army have to be knocking on your door saying, ‘Come with me,’ before there will be the ability to challenge such a law?” He said the appellate court’s ruling “means you have to be incarcerated before you can challenge the law under which you’re incarcerated.”

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“There’s nothing that’s built into this NDAA [the National Defense Authorization Act] that even gives a detained person the right to get to an attorney,” Afran said. “In fact, the whole notion is that it’s secret. It’s outside of any judicial process. You’re not even subject to a military trial. You can be moved to other jurisdictions under the law. It’s the antithesis of due process.”

The judges on the appellate court admitted that we as plaintiffs had raised “difficult questions.”

“This is a way of acknowledging they’re troubled by the apparent lack of constitutionality of the law,” Afran said during our conversation. “But they were not willing to face the question head on. So, in effect, they said, ‘Well, when someone’s threatened with arrest, then we have a concrete injury.’ But no one’s going to be threatened with arrest. They’ll simply be arrested. They’re not going to send a letter saying, ‘By the way, on Thursday next we’re going to place you in military custody.’ … The whole point of the law is that they’re going to come in and take you [in secrecy].”

The appellate court stated that the law does not apply to U.S. citizens and permanent residents. In reading the law this way the justices were saying, in effect, that I and the other plaintiffs had nothing to fear. Afran called this a “circular argument.” The court, in essence, said that because it did not construe the law as applying to U.S. citizens and lawful residents we could not bring the case to court.

“They seem to accept a lot of what we said, namely that the whole history of the jurisprudence, of the court decisions, is that American civilians cannot be placed in military custody,” Afran said. “And they accept the idea that Section E of the statute says, ‘Nothing herein shall be construed to affect existing authorities as to the detention of U.S. citizens.’ So on the basis of that they say this is not meant to add any new powers to the government and since the government doesn’t have power over civilians in this way the law can’t be extended to civilians. The problem is by saying there’s no standing, they deprive the district court of entering an order, saying and declaring that the statue does not apply to U.S. citizens or permanent residents, lawful residents in the U.S.”

The court, in essence, accepted the principle that citizens cannot be taken into military custody but refused to issue a direct order saying so that would be enforceable.

“We have the absurdity of the court of appeals, one of the highest courts in the country, saying this law cannot touch citizens and lawful residents, but depriving the trial court of the ability to enter an order blocking it from being used in that way,” Afran said. “The lack of an order enables future [military] detentions. A person may have to languish for months, maybe years, before getting a court hearing. The [appellate] court correctly stated what the law is, but it deprived the trial court of the ability to enter an order stopping this [new] law from being used.”

“A law is not constitutional just because habeas corpus says you have a right to go to court to try to get out,” Afran said in speaking about the legal mechanism by which someone might challenge custody. “The citizen is entitled not to be detained in the first place absent probable cause. Habeas corpus is a remedy of last resort. It’s not there to justify the use of unconstitutional detention laws.”

The Supreme Court takes between 80 and 100 cases a year from about 8,000 requests. There is no guarantee our appeal will ever be heard. If we fail, if this law stands, if in the years ahead the military starts to randomly seize and disappear people, if dissidents and activists become subject to indefinite and secret detention in military gulags, we will at least be able to look back on this moment and know we fought back.


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