May 24, 2013
The NDAA and the Death of the Democratic State
Posted on Feb 11, 2013
By Chris Hedges
Loeb did not explain to the court who defines an “independent journalist.” I have interviewed members of al-Qaida as well as 16 other individuals or members of groups on the State Department’s terrorism list. When I convey these viewpoints, deeply hostile to the United States, am I considered by the government to be “independent”? Could I be seen by the security and surveillance state, because I challenge the official narrative, as a collaborator with the enemy? And although I do not drive black vans for people Loeb does not like, I have spent days, part of the time in vehicles, with armed units that are hostile to the United States. These include Hamas in Gaza and the Kurdistan Workers Party (PKK) in southeastern Turkey.
I traveled frequently with armed members of the Farabundo Marti National Liberation Front in El Salvador and the Sandinista army in Nicaragua during the five years I spent in Central America. Senior officials in the Reagan administration regularly denounced many of us in the press as fifth columnists and collaborators with terrorists. These officials did not view us as “independent.” They viewed us as propagandists for the enemy. Section 1021(b)(2) turns this linguistic condemnation into legal condemnation.
Alexa O’Brien, another plaintiff and a co-founder of the US Day of Rage, learned after WikiLeaks 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, that Stratfor operatives were trying to link her and her organization to Islamic radicals, including al-Qaida, and sympathetic websites as well as jihadist ideology. If that link were made, she and those in her organization would not be immune from detention.
Afran said at the Culture Project discussion that he once gave a donation at a fundraising dinner to the Ancient Order of Hibernians, an Irish Catholic organization. A few months later, to his surprise, he received a note of thanks from Sinn Féin. “I didn’t expect to be giving money to a group that maintains a paramilitary terrorist organization, as some people say,” Afran said. “This is the danger. You can easily find yourself in a setting that the government deems worthy of incarceration. This is why people cease to speak out.”
“Just calling yourself a journalist doesn’t make you a journalist, like Al-Hajj,” Loeb told the court. “He used journalism as a cover. He was a member of al-Qaida and provided Stinger missiles to al-Qaida.”
Al-Hajj, despite Loeb’s assertions, was never charged with any crimes. And the slander by Loeb only highlighted the potential for misuse of this provision of the NDAA if it is not struck down.
The second central argument by the government was even more specious. Loeb claimed that Subsection 1021(e) of the NDAA exempts citizens from detention. Section 1021(e) states: “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”
Afran countered Loeb by saying that Subsection 1021(e) illustrated that the NDAA assumed that U.S. citizens would be detained by the military, overturning two centuries of domestic law that forbids the military to carry out domestic policing. And military detention of citizens, Afran noted, is not permitted under the Constitution.
Afran quoted the NDAA bill’s primary sponsor, Sen. Lindsey Graham, R-S.C., who said on the floor of the Senate: “In the case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don’t have to worry very long, because our federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn’t [just] go to a political rally.”
Afran told the court that Graham’s statement implicitly acknowledged that U.S. citizens could be detained by the military under 1021(b)(2). “There is no reason for the sponsor to make that statement if he does not realize that the statute causes that chilling fear,” Afran told the judges.
After the hearing Afran explained: “If the senator who sponsored and managed the bill believed people would be afraid of the law, then the plaintiffs obviously have a reasonably objective basis to fear the statute.”
In speaking to the court Afran said of 1021(e): “It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?”
This was a question Judge Lohier, at Afran’s urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold U.S. citizens.
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