The
NDAA and the Death of the Democratic State
By
Chris
Hedges
11
February, 2013
On
Wednesday a few hundred activists crowded into the courtroom of the
Second Circuit, the spillover room with its faulty audio feed and
dearth of chairs, and Foley Square outside the Thurgood Marshall U.S.
Courthouse in Manhattan where many huddled in the cold. The fate of
the nation, we understood, could be decided by the three judges who
will rule on our lawsuit against President Barack Obama for signing
into law Section 1021(b)(2) of the National Defense Authorization Act
(NDAA).
The
section permits the military to detain anyone, including U.S.
citizens, who “substantially support”—an undefined legal
term—al-Qaida, the Taliban or “associated forces,” again a term
that is legally undefined. Those detained can be imprisoned
indefinitely by the military and denied due process until “the end
of hostilities.” In an age of permanent war this is probably a
lifetime. Anyone detained under the NDAA can be sent, according to
Section (c)(4), to any “foreign country or entity.” This is, in
essence, extraordinary
rendition
of U.S. citizens. It empowers the government to ship detainees to the
jails of some of the most repressive regimes on earth.
Section
1021(b)(2) was declared invalid in September after our first trial,
in the Southern District Court of New York. The Obama administration
appealed the Southern District Court ruling. The appeal was heard
Wednesday in the Second Circuit Court with Judges Raymond J. Lohier,
Lewis A. Kaplan and Amalya L. Kearse presiding. The judges might not
make a decision until the spring when the Supreme Court rules in
Clapper v. Amnesty International USA, another case in which I am a
plaintiff. The Supreme Court case challenges the government’s use
of electronic surveillance. If we are successful in the Clapper case,
it will strengthen all the plaintiffs’ standing in Hedges v. Obama.
The Supreme Court, if it rules against the government, will affirm
that we as plaintiffs have a reasonable fear of being detained.
If
we lose in Hedges v. Obama—and it seems certain that no matter the
outcome of the appeal this case will reach the Supreme
Court—electoral politics and our rights as citizens will be as
empty as those of Nero’s Rome. If we lose, the power of the
military to detain citizens, strip them of due process and hold them
indefinitely in military prisons will become a terrifying reality.
Democrat or Republican. Occupy activist or libertarian. Socialist or
tea party stalwart. It does not matter. This is not a partisan fight.
Once the state seizes this unchecked power, it will inevitably create
a secret, lawless world of indiscriminate violence, terror and
gulags. I lived under several military dictatorships during the two
decades I was a foreign correspondent. I know the beast.
“The
stakes are very high,” said attorney Carl Mayer, who with attorney
Bruce Afran brought our case to trial, in addressing a Culture
Project
audience in Manhattan on Wednesday after the hearing. “What our
case comes down to is: Are we going to have a civil justice system in
the United States or a military justice system? The civil justice
system is something that is ingrained in the Constitution. It was
always very important in combating tyranny and building a democratic
society. What the NDAA is trying to impose is a system of military
justice that allows the military to police the streets of America to
detain U.S. citizens, to detain residents in the United States in
military prisons. Probably the most frightening aspect of the NDAA is
that it allows for detention until ‘the end of hostilities.’ ”
[To see videos of Mayer, Afran, Hedges and others participating in
the Culture Project panel discussion, click
here.]
Five thousand years of human civilization has left behind innumerable ruins to remind us that the grand structures and complex societies we build, and foolishly venerate as immortal, crumble into dust. It is the descent that matters now. If the corporate state is handed the tools, as under Section 1021(b)(2) of the NDAA, to use deadly force and military power to criminalize dissent, then our decline will be one of repression, blood and suffering. No one, not least our corporate overlords, believes that our material conditions will improve with the impending collapse of globalization, the steady deterioration of the global economy, the decline of natural resources and the looming catastrophes of climate change.
But
the global corporatists—who have created a new species of
totalitarianism—demand, during our decay, total power to extract
the last vestiges of profit from a degraded ecosystem and
disempowered citizenry. The looming dystopia is visible in the skies
of blighted postindustrial cities such as Flint, Mich., where drones
circle like mechanical vultures. And in an era where the executive
branch can draw up secret kill lists that include U.S. citizens, it
would be naive to believe these domestic drones will remain unarmed.
Robert
M. Loeb, the lead attorney for the government in Wednesday’s
proceedings, took a tack very different from that of the government
in the Southern District Court of New York before Judge Katherine B.
Forrest. Forrest repeatedly asked the government attorneys if they
could guarantee that the other plaintiffs and I would not be subject
to detention under Section 1021(b)(2). The government attorneys in
the first trial granted no such immunity. The government also claimed
in the first trial that under the 2001 Authorization to Use Military
Force Act (AUMF), it already had the power to detain U.S. citizens.
Section 1021(b)(2), the attorneys said, did not constitute a
significant change in government power. Judge Forrest in September
rejected the government’s arguments and ruled Section 1021(b)(2)
invalid.
The
government, however, argued Wednesday that as “independent
journalists” we were exempt from the law and had no cause for
concern. Loeb stated that if journalists used journalism as a cover
to aid the enemy, they would be seized and treated as enemy
combatants. But he assured the court that I would be untouched by the
new law as long as “Mr. Hedges did not start driving black vans for
people we don’t like.”
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.”
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The
government attempted in court last week to smear Sami
Al-Hajj,
a journalist for the Al-Jazeera news network who was picked up by the
U.S. military and imprisoned for nearly seven years in Guantanamo.
This, for me, was one of the most chilling moments in the hearing.
“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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