A Victory for All of Us
In January, attorneys Carl Mayer and Bruce Afran asked me to be the lead plaintiff in a lawsuit against President Barack Obama and Defense Secretary Leon Panetta that challenged the harsh provisions of the National Defense Authorization Act (NDAA). We filed the lawsuit, worked for hours on the affidavits, carried out the tedious depositions, prepared the case and went to trial because we did not want to be passive in the face of another egregious assault on basic civil liberties, because resistance is a moral imperative, and because, at the very least, we hoped we could draw attention to the injustice of the law. None of us thought we would win. But every once in a while the gods smile on the damned.
U.S. District Judge Katherine Forrest, in a 68-page opinion, ruled Wednesday that Section 1021 of the NDAA was unconstitutional. It was a stunning and monumental victory. With her ruling she returned us to a country where — as it was before Obama signed this act into law Dec. 31 — the government cannot strip a U.S. citizen of due process or use the military to arrest him or her and then hold him or her in military prison indefinitely. She categorically rejected the government’s claims that the plaintiffs did not have the standing to bring the case to trial because none of us had been indefinitely detained, that lack of imminent enforcement against us meant there was no need for an injunction and that the NDAA simply codified what had previously been set down in the 2001 Authorization to Use Military Force Act. The ruling was a huge victory for the protection of free speech. Judge Forrest struck down language in the law that she said gave the government the ability to incarcerate people based on what they said or wrote. Maybe the ruling won’t last. Maybe it will be overturned. But we and other Americans are freer today than we were a week ago. And there is something in this.
The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole. And this, I think, decided the case.
“At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest noted. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”
The government has 60 days to appeal. It can also, as Mayer and Afran have urged, accept the injunction that nullifies the law. If the government appeals, the case will go to a federal appellate court. The ruling, even if an appellate court upholds it, could be vanquished in the Supreme Court, especially given the composition of that court.
We had none of the resources of the government. Mayer and Afran worked for weeks on the case without compensation. All of us paid for our own expenses. And few people, including constitutional lawyers of Glenn Greenwald’s caliber, thought we had a chance. But we pushed forward. We pushed forward because all effort to impede the corporate state, however quixotic, is essential. Even if we ultimately fail we will be able to say we tried.
This law was, after all, not about foreign terrorism. It was about domestic dissent. If the state could link Occupy and other legitimate protest movements with terrorist groups (US Day of Rage suffered such an attempt), then the provisions in the NDAA could, in a period of instability, be used to “disappear” U.S. citizens into military gulags, including the government’s offshore penal colonies. And once there, stripped of due process, detainees could be held until, in the language of the law, “the end of hostilities.” In an age of permanent war that would be a lifetime.
Human existence, as I witnessed in war, is precarious and often very short. The battles that must be fought may never be won in our lifetime. And there will always be new battles to define our struggle. Resistance to tyranny and evil is never ending. It is a way, rather, of defining our brief sojourn on the planet. Revolt, as Albert Camus reminded us, is the only acceptable definition of the moral life. Revolt, he wrote, is “a constant confrontation between man and his obscurity. … It is not aspiration, for it is devoid of hope. That revolt is the certainty of a crushing fate, without the resignation that ought to accompany it.”
“A living man can be enslaved and reduced to the historic condition of an object,” Camus warned. “But if he dies in refusing to be enslaved, he reaffirms the existence of another kind of human nature which refuses to be classified as an object.”The lawyers and I and the other plaintiffs mounted this challenge because what had been solidified into the legal code was a palpable wrong. Victory or defeat was not part of the equation. Not to challenge this law would have meant being complicit in its implementation. And once resistance defines a life it becomes reflexive.
“You do not become a ‘dissident’ just because you decide one day to take up this most unusual career,” Vaclav Havel said when he was battling the communist regime in Czechoslovakia. “You are thrown into it by your personal sense of responsibility, combined with a complex set of external circumstances. You are cast out of the existing structures and placed in a position of conflict with them. It begins as an attempt to do your work well, and ends with being branded an enemy of society. … The dissident does not operate in the realm of genuine power at all. He is not seeking power. He has no desire for office and does not gather votes. He does not attempt to charm the public. He offers nothing and promises nothing. He can offer, if anything, only his own skin—and he offers it solely because he has no other way of affirming the truth he stands for. His actions simply articulate his dignity as a citizen, regardless of the cost.”
Rebellion is an act that assures us of remaining free and independent human beings. Rebellion is not waged because it will work; indeed in its noblest form it is waged when we know it will fail. Our existence, as Camus wrote, must itself be “an act of rebellion.” Not to rebel, not to protect and nurture life even in the face of death, is spiritual and moral suicide. The Nazi concentration camp guards sought to break prisoners first and then kill them. They understood that even the power to choose the timing and circumstances of one’s death was an affirmation of personal freedom and dangerous to the status quo. So although the guards killed at random they went to great lengths to prevent people in the camps from committing suicide. Totalitarian systems, to perpetuate themselves, always seek to break autonomy and self-determination. This makes all acts of resistance a threat, even those acts that will not succeed. And this is why in all states that rule by force any act of rebellion, even one that is insignificant, must be ruthlessly crushed. The goal of the corporate state, like that of any totalitarian entity, is to create a society where no one has the capacity to resist.
It is not going to get better. The climate crisis alone will assure that. The corporate state knows what is coming. Globalization is breaking down. Our natural resources are being depleted. Economic and political upheavals are inevitable. And our corporate rulers are preparing a world of masters and serfs, a world where repression will be our daily diet, a world of hunger and riots, a world of brutal control and a world where our spirits must be broken. We have to stop asking what is reasonable or practical, what the Democratic Party or the government can do for us, what will work or not work. We must refuse now to make any concessions, large or small. We must remember that the lesser of two evils is still evil. We must no longer let illusions pacify us. Hell is truth seen too late. In large and small ways we are called to resist, resist, resist, as we race heedlessly into the abyss.