The battle to strip vague language from the 2012 National Defense Authorization Act that allows the U.S. government and military to arrest and indefinitely detain U.S. citizens, and also denies access to due process privileges guaranteed under the U.S. Constitution, continues to play out in the U.S. judicial system without much support or anger from the American public.
On March 30, journalist Chris Hedges, former Middle East bureau chief for the New York Times and a senior fellow at the Nation Institute, shared that the Obama administration filed a brief with the U.S. Supreme Court asking the justices to refuse to hear the case now commonly known as Hedges v. Obama.
Filed in January 2012, the Hedges v. Obama lawsuit specifically challenges Section 1021(b)(2) of the NDAA, arguing that this clause allows U.S. citizens, including journalists, who “associate” or “substantially support” enemies of the U.S. such as terrorist groups like al-Qaida, to be unlawfully and indefinitely detained.
Hedges and his co-plaintiffs — a list that includes linguist and philosopher Noam Chomsky, whistleblower Daniel Ellsberg, journalist Alexa O’Brien, journalist and activist Tangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist Kai Wargalla — hold that this clause fails to define what the government considers to be association or support of terrorists. This is especially concerning to Hedges, who has never been able to confirm with the U.S. government whether “association” could apply to a journalist interviewing terrorists.
In 2012, U.S. District Judge Katherine B. Forrest of the Southern District of New York, ruled that Section 1021(b)(2) was unconstitutional, agreeing with the plaintiffs that the rights violated by this law include the rights due process under the Fifth and Sixth Amendments, Fourth Amendment rights of protection against unreasonable search and seizure, and even First Amendment rights.
The Obama administration asked Forrest to lift her injunction in order to put the law back into effect during the appeals process, but the judge refused. Per the U.S. government’s request, the case moved on to the Second Circuit of the U.S. Court of Appeals, where in July 2013, the court granted the government’s request for an injunction and the indefinite detention clause going back into effect.
The judges said the journalists, authors and political activists involved in the lawsuit had no right to sue because they were unable to prove they were at risk of being indefinitely detained, thereby siding with the government’s lawyers that the “trust us” policy offered adequate protection for the public.
Hedges said he believes the Obama administration had no choice but to adamantly fight for the law to go back into effect, since the U.S. government is likely holding U.S. citizens in “black sites,” or secret prisons located around the world, which would have meant the Obama administration would have been in contempt of court while the injunction was not in place.
High stakes for the high court
Hedges and his fellow plaintiffs have not yet responded to the government’s request that the Supreme Court not hear the case, but on Thursday, Hedges told MintPress News that his lawyers were working on a response because they only had 10 days to respond to the March 30 brief filing.
Hedges said he decided to file the lawsuit because Section 1021(b)(2) overturns almost 150 years of domestic law in the U.S. that has prohibited the military from carrying out domestic policing.
“We don’t want to give the government this kind of power because they will use it,” Hedges said, explaining that with stagnant and falling incomes, a high unemployment rate and climate change, the “elite are preparing legal mechanisms in which they can use wholesale surveillance and arbitrary detention to maintain order.”
Whether the Supreme Court will opt to listen to the case is unknown, but Hedges said the government likely wouldn’t waste its time writing and filing a brief if it didn’t believe there was a good chance the high court was going to take the case. And according to Bruce Afran, one of two attorneys handling the case, the brief seems to ask the court to break from its 150-year pattern of repeatedly refusing to give the military such power.
“No court in U.S. history has ever recognized the right of the government to use the military to detain citizens,” Afran said. “It would be very easy for the government to state in the brief that citizens and permanent residents are not within the scope of this law. But once again, it will not do this. It says the opposite. It argues that the activities of the plaintiffs do not fall within the scope of the law, but it clearly is reserving for itself the right to use the statute to detain U.S. citizens indefinitely.”
Noam Chomsky stated in reference to the case, that for the first time in the some 800 year history of the Magna Carta, which includes the basic concept that no “free man” can be subjected to any punishment without the “lawful judgement of his peers of by the land, we are at risk of losing this principle presumption of democracy that a person is innocent until proven guilty.
“[T]he current government is breaking new ground in rejecting the fundamental principles of western law,” Chomsky said. “If this continues, we will not commemorate the Magna Carta next year, but mourn its demise.”
Hedges pointed out in a recent column for Truthdig, “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.”
“I spent 20 years as a foreign correspondent, 15 of them with The New York Times,” Hedges wrote. “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,” he continued. “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.”
Thwarting the feds
As in the case of the warrantless surveillance conducted by the National Security Agency, Congress hasn’t enacted any legislation to thwart the Orwellian-esque behavior of the U.S. intelligence agency, but some states have.
Currently four states — California, Alaska, Virginia and Michigan — have passed legislation that Mike Maharrey, communications director of the Tenth Amendment Center, said prohibits any state resources or state officers from assisting in indefinite detention of that state’s residents. Similar legislation is currently being debated or introduced in more than 10 other states.
Maharrey said this type of legislation may not prevent the feds from indefinitely detaining individuals or even ensure due process privileges are respected, but it sends a message to lawmakers in Washington, D.C., that this provision in the National Defense Authorization Act is “not constitutionally right or morally right.”
He told MintPress that at this point, state and local activism is key in convincing both Democrats and Republicans to end their support for the defense act, since it’s easier to move the pressure for reform up the ladder than to start at the top.
Shahid Buttar, executive director of the Bill of Rights Defense Committee and the People’s Campaign for the Constitution, agreed that local governments have to get involved in the battle against indefinite detention.
«Provisions of the 2012 NDAA that could enable indefinite military detention without trial, even for Americans within the United States, remain available for future administrations to abuse,” Buttar told MintPress. “Congress will have an opportunity to revisit this issue and restore due process in the next NDAA. In the meantime, it falls to the states, several of which have already taken independent action to guard constitutional rights eroded by Congress and the federal courts.»
Since this battle for civil liberties has been largely underreported, and members of both political parties, as well as the Obama administration, continue to tell the American public that this provision “doesn’t really apply to Americans” and “doesn’t mean what the words on the paper say,” Maharrey said the public hasn’t gotten involved with, or upset about it.
People don’t want to think that our government would lock someone up, Maharrey said, but as he pointed out, it’s already happened. During World War II, for example, President Roosevelt issued an executive order placing all Japanese Americans in an internment camp. “These poor people spent three years behind wired fences,” Maharrey said, adding that the Supreme Court later ruled that it was completely legal.
It also happened to Oregon resident Brandon Mayfield. In 2004, the FBI claimed it found Mayfield’s fingerprints near the scene of a terrorist bombing in Madrid, Spain, so they held Mayfield in a city jail without telling him what he was charged with, giving him access to legal counsel or even telling his family where he was.
Mayfield’s family reportedly learned he had been detained when an FBI official leaked details about the case to the media. But Maharrey said that what’s so concerning about Mayfield’s case is that the fingerprints found at the scene of the Madrid bombings matched about 20 people, including Mayfield. But since Mayfield had converted to Islam, the FBI got tunnel vision and ignored all the evidence that led to Mayfield’s eventual exoneration.
Failure of the press
Though cases like Mayfield’s are public knowledge and the threat of press freedoms being taken away is also well-known, the majority of Americans view concerns about this provision as something only paranoid people or conspiracy theorists believe to be true. But Maharrey points out that the government would be able to detain an individual until the global war on terror ends, which he said will likely never happen.
Hedges said the lack of reporting on this issue has resulted in a lack of awareness among the American public and illustrates how the journalism industry has become one riddled with propaganda and infotainment.
Tangerine Bolen, a co-plaintiff in the case, as well as the founder and executive director of RevolutionTruth, said she was disheartened by the lack of coverage and awareness of this case, given that it affects journalists, and Hedges brought a lawsuit against the Department of Justice a few years ago alleging that he was being spied on and had his phone tapped, which turned out to be true.
“The fact that we haven’t been indefinitely detained yet — and there is no way to even find out who is being indefinitely detained under this provision, or where — caused those outlets to turn away,” Bolen told MintPress. “Had any [mainstream media] come to court in March of 2012 this case would have been front page news from day one. The DOJ made such astonishing claims in court of such sweeping, unchecked and unconstitutional powers that the false national narrative concerning the Constitution and our security would have been upended. It didn’t happen, however, sadly.”
She continued, saying it is imperative that the Supreme Court not only decides to hear the case, but also rules in favor of the plaintiffs. “Our lawsuit is the one thing standing in between unchecked and unconstitutional powers of the state and the basic rights of the people.”