The
Final Battle
by Chris
Hedges
23
December, 2012
Over
the past year I and other plaintiffs including Noam Chomsky and
Daniel Ellsberg have pressed a lawsuit in the federal courts to
nullify Section 1021(b)(2) of the National Defense Authorization Act
(NDAA). This egregious section, which permits the government to use
the military to detain U.S. citizens, strip them of due process and
hold them indefinitely in military detention centers, could have been
easily fixed by Congress. The Senate and House had the opportunity
this month to include in the 2013 version of the NDAA an unequivocal
statement that all U.S. citizens would be exempt from 1021(b)(2),
leaving the section to apply only to foreigners. But restoring due
process for citizens was something the Republicans and the Democrats,
along with the White House, refused to do. The fate of some of our
most basic and important rights—ones enshrined in the Bill of
Rights as well as the Fourth and Fifth amendments of the
Constitution—will be decided in the next few months in the courts.
If the courts fail us, a gulag state will be cemented into place.
Sens.
Dianne Feinstein, D-Calif., and Mike Lee, R-Utah, pushed through the
Senate an amendment to the 2013 version of the NDAA. The amendment,
although deeply flawed, at least made a symbolic attempt to restore
the right to due process and trial by jury. A House-Senate conference
committee led by Sen. John McCain, R-Ariz., however, removed the
amendment from the bill last week.
“I
was saddened and disappointed that we could not take a step forward
to ensure at the very least American citizens and legal residents
could not be held in detention without charge or trial,” Feinstein
said in a statement issued by her office. “To me that was a
no-brainer.”
The
House approved the $633 billion NDAA for 2013 in a 315-107 vote late
Thursday night. It will now go before the Senate. Several opponents
of the NDAA in the House, including Rep. Morgan Griffith, R-Va.,
cited Congress’ refusal to guarantee due process and trial by jury
to all citizens as his reason for voting against the bill. He wrote
in a statement after the vote that “American citizens may fear
being arrested and indefinitely detained by the military without
knowing what they have done wrong.”
The
Feinstein-Lee amendment was woefully inadequate. It was probably
proposed mainly for its public relations value, but nonetheless it
resisted the concerted assault on our rights and sought to calm
nervous voters objecting to the destruction of the rule of law. The
amendment failed to emphatically state that citizens could never be
placed in military custody. Rather, it said citizens could not be
placed in indefinite military custody without “trial.” But this
could have been a trial by military tribunals. Citizens, under the
amendment, could have been barred from receiving due process in a
civil court. Still, it was better than nothing. And now we have
nothing.
“Congressional
moves concerning the NDAA make it clear that Congress as a whole has
no stomach for the protection of civil liberties,” said attorney
Bruce Afran, who along with attorney Carl Mayer has brought the
lawsuit against President Obama in which we are attempting to block
Section 1021(b)(2).
The
only hero so far in this story is U.S. District Judge Katherine B.
Forrest of the Southern District Court of New York. Forrest in
September accepted all of our challenges to the law. She issued a
permanent injunction invalidating Section 1021(b)(2). Government
lawyers asked Forrest for a “stay pending appeal”—meaning the
law would go back into effect until the Court of Appeals for the
Second Circuit issued a ruling in the case. She refused. The
government then went directly to the Court of Appeals and asked it
for a temporary stay while promising not to detain the plaintiffs or
other U.S. citizens under the provision. The Court of Appeals, which
will hear oral arguments in January, granted the government’s
request for a temporary stay. The law went back into effect. If the
Court of Appeals upholds Forrest’s ruling, the case will most
likely be before the Supreme Court within weeks.
“President
Obama should never have appealed this watershed civil rights ruling,”
Mayer said. “But now that he has, the fight may well go all the way
to the Supreme Court. At stake is whether America will slide more
toward authoritarianism or whether the judicial branch of government
will stem the decade-long erosion of our civil liberties. Since 9/11
Americans have been systematically stripped of their freedoms: Their
phone calls are monitored under [George W.] Bush and Obama’s
warrantless wiretapping program, they are videotaped relentlessly in
public places, there are drones over American soil and the police
control protesters and dissenters with paramilitary gear and tactics.
As long as Obama and the leadership of both parties want the military
to police our streets, we will fight. This is unacceptable,
un-American and unconstitutional.”
We
knew the government would appeal, but we did not expect it to act so
aggressively. This means, we suspect, that the provision is already
being used, most likely to hold people with U.S. and Pakistani dual
citizenship or U.S. and Afghan dual citizenship in military detention
sites such as Bagram. If the injunction were allowed to stand during
the appeal and U.S. citizens were being held by the military without
due process, the government would be in contempt of court.
Judge
Forrest’s 112-page opinion is a stark explication and condemnation
of the frightening erosion of the separation of powers. In her
opinion she referred to the Supreme Court ruling Korematsu v. United
States, which declared constitutional the government’s internment
of 110,000 Japanese-Americans without due process during World War
II. The 2013 NDAA, like the old versions of the act, allows similar
indefinite detentions—of Muslim Americans, dissidents and other
citizens.
Section
1021(b)(2) defines a “covered person”—one subject to
detention—as “a person who was a part of or substantially
supported al-Qaeda, the Taliban, or associated forces that are
engaged in hostilities against the United States or its coalition
partners, including any person who has committed a belligerent act or
has directly supported such hostilities in aid of such enemy forces.”
The
section, however, does not define the terms “substantially
supported,” “directly supported” or “associated forces.”
The vagueness of the language means that the plaintiffs, including
those who as journalists have contact with individuals or groups
deemed by the State Department to be part of terrorist organizations,
could along with others find themselves seized and detained under the
provision.
The
corporate state knows that the steady deterioration of the economy
and the increasingly savage effects of climate change will create
widespread social instability. It knows that rage will mount as the
elites squander diminishing resources while the poor, as well as the
working and middle classes, are driven into destitution. It wants to
have the legal measures to keep us cowed, afraid and under control.
It does not, I suspect, trust the police to maintain order. And this
is why, contravening two centuries of domestic law, it has seized for
itself the authority to place the military on city streets and
citizens in military detention centers, where they cannot find
redress in the courts. The shredding of our liberties is being done
in the name of national security and the fight against terrorism. But
the NDAA is not about protecting us. It is about protecting the state
from us. That is why no one in the executive or legislative branch is
going to restore our rights. The new version of the NDAA, like the
old ones, provides our masters with the legal shackles to make our
resistance impossible. And that is their intention
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