[Occupymendocino] The National Defense Authorization Act

[agnes at mcn.org]

The Last Chance to Stop the NDAA
Monday, 02 September 2013 11:29 By Chris Hedges, TruthDig | Report

occupyers,
     Call your Congresspersons,Feinstein, Boxer and Huffman at
202-224-3121 and ask the operator to connect you to their offices
,one by one. Tell them to amend the Nat. Defense Authorization Act to
remove Section 1021. This section would permit the military to seize
U.S. citizens, strip them of due process and hold them indefinitely
in military facilities.
Agnes

 Mark Fischer)I and my fellow plaintiffs have begun the third and final
round of our battle to get the courts to strike down a section of
theNational Defense Authorization Act(NDAA) that permits the military to
seize U.S. citizens, strip them of due process and hold them indefinitely
in military facilities. Carl Mayer and Bruce Afran, the lawyers who with
me in January 2012 brought a lawsuit against President Barack Obama
(Hedges v. Obama), are about to file papers asking the U.S. Supreme Court
to hear our appeal of a 2013 ruling on the act’s Section 1021.

“First the terrorism-industrial complex assured Americans that they were
only spying on foreigners, not U.S. citizens,” Mayer said to me recently.
“Then they assured us that they were only spying on phone calls, not
electronic communications. Then they assured us that they were not spying
on American journalists. And now both [major political] parties and the
Obama administration have assured us that they will not detain
journalists, citizens and activists. Well, they detained journalist Chris
Hedges without a lawyer, they detained journalist Laura Poitras without
due process and if allowed to stand this law will permit the military to
target activists, journalists and citizens in an unprecedented assault on
freedom in America.”

Last year we won round one: U.S. District Judge Katherine B. Forrest of
the Southern District of New York declared Section 1021 unconstitutional.
The Obama administration immediately appealed her ruling and asked a
higher court to put the law back into effect until Obama’s petition was
heard. The appellate court agreed. The law went back on the books. I
suspect it went back on the books because the administration is already
using it, most likely holding U.S. citizens who are dual nationals in
black sites in Afghanistan and the Middle East. If Judge Forrest’s ruling
were allowed to stand, the administration, if it is indeed holding U.S.
citizens in military detention centers, would be in contempt of court.

In July 2013 the appellate court, in round two, overturned Forrest’s
ruling. All we have left is the Supreme Court, which may not take the
case. If the Supreme Court does not take our case, the law will remain in
place unless Congress strikes it down, something that federal legislators
have so far refused to consider. The three branches of government may want
to retain the ability to use the military to maintain control if
widespread civil unrest should occur in the United States. I suspect the
corporate state knows that amid the mounting effects of climate change and
economic decline the military may be all that is left between the elite
and an enraged population. And I suspect the corporate masters do not
trust the police to protect them.

If Section 1021 stands it will mean that more than 150 years of case law
in which the Supreme Court repeatedly held the military has no
jurisdiction over civilians will be abolished. It will mean citizens who
are charged by the government with “substantially supporting” al-Qaida,
the Taliban or the nebulous category of “associated forces” will be
lawfully subject to extraordinary rendition. It will mean citizens seized
by the military will languish in military jails indefinitely, or in the
language of Section 1021 until “the end of hostilities”—in an age of
permanent war, for the rest of their lives. It will mean, in short,
obliteration of our last remaining legal protections, especially now that
we have lost the right to privacy, and the ascent of a crude, militarized
state that serves the leviathan of corporate totalitarianism. It will
mean, as Forrest pointed out in her 112-page opinion, that whole
categories of Americans—and here you can assume dissidents and
activists—will be subject to seizure by the military and indefinite and
secret detention.

“As Justice [Robert] Jackson said in his dissent in the Korematsu case,
involving the indiscriminate detention of Japanese-American citizens
during World War II, once an unconstitutional military power is sanctioned
by the courts it ‘lies about like a loaded weapon, ready for the hand of
any authority,’ ” Mayer said.

In our lawsuit the appellate court never directly addressed the issue of
using the military to hold citizens and strip them of due
process—something that is clearly unconstitutional. Instead, the court
held that I and the other plaintiffs did not have standing to bring the
case. It said that because none of us had been imminently threatened with
arrest we had no credible fear. This was an odd argument. When I was a New
York Times reporter I was, as stated in court, arrested and held by the
U.S. military in violation of my First Amendment rights as I was covering
conflicts in the Middle East. In addition I was briefly detained, without
explanation, in the Newark, N.J., airport by Homeland Security as I
returned from Italy, the court was told.

During the five years I covered the war in El Salvador the Reagan
administration regularly denounced reporters who exposed atrocities by the
Salvadoran military as“fifth columnists” for the rebel movement, a charge
that made us in the eyes of Reagan officials at the very least accomplices
to terrorism. This, too, was raised in court, as was the fact that during
my seven years as a reporter in the Middle East I met regularly with
individuals and groups, including al-Qaida, that were considered
terrorists by the U.S. government. There were times in my 20-year career
as a foreign correspondent, especially when I reported events or opinions
that challenged the official narrative, that the U.S. government made
little distinction between me and groups that were antagonistic to the
United States. In those days there was no law that could be used to seize
and detain me. Now there is.

Journalist Alexa O’Brien, who joined the lawsuit as a plaintiff along with
Noam Chomsky, Daniel Ellsberg and others, was incorrectly linked by the
security and surveillance state to terrorist groups in the Middle East.
O’Brien, who doggedly covered the trial of Chelsea (formerly Bradley)
Manning, co-foundedUS Day of Rage, an organization dedicated to electoral
reform. When WikiLeaks in February 2012 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, it was revealed that the company was attempting to tie O’Brien and
her organization to Islamic radicals and websites as well as jihadist
ideology. Fred Burton, Stratfor’s vice president for counterterrorism and
corporate security and a former deputy director of the counterterrorism
division of the State Department’s Diplomatic Security Service, and Thomas
Kopecky, director of operations at Investigative Research Consultants Inc.
and Fortis Protective Services LLC, had an email exchange over this issue.
Kopecky wrote: “I was looking into that US Day of Rage movement and
specifically asked to connect it to any Saudi or other fundamentalist
Islamic movements. Thus far, I have only hear[d] rumors but not gotten any
substantial connection. Do you guys know much about this other than its US
Domestic fiscal ideals?” Burton replied: “No, we’re not aware of any
concrete connections between fundamentalist Islamist movements and the Day
of Rage, or the October 2011 movement at this point.” But that soon
changed. Stratfor, through others working in conjunction with the FBI,
falsely linked US Day of Rage to al-Qaida and other Islamic terrorist
organizations. Homeland Security later placed her group on a terrorism
watch list.

This will be the standard tactic. Laws passed in the so-called war on
terror will be used to turn all dissidents and activists into terrorism
suspects, subjecting them to draconian forms of state repression and
control. The same tactic was used during the anti-communist hysteria of
the 20th century to destroy union leaders, writers, civil rights
activists, intellectuals, artists, teachers, politicians and organizations
that challenged entrenched corporate power.

“After 12 years of an undeclared permanent war against an undefined enemy
and multiple revelations about massive unconstitutional spying by the
government, we certainly hope that the Supreme Court will strike down a
law that replaces our civilian system of justice with a military one,”
said Mayer. “Unless this happens there will be little left of judicial
review during wartime.”

Afran, a law professor at Rutgers University, asked last week during a
conversation with me: “Does the Army have to be knocking on your door
saying, ‘Come with me,’ before there will be the ability to challenge such
a law?” He said the appellate court’s ruling “means you have to be
incarcerated before you can challenge the law under which you’re
incarcerated.”

“There’s nothing that’s built into this NDAA [the National Defense
Authorization Act] that even gives a detained person the right to get to
an attorney,” Afran said. “In fact, the whole notion is that it’s secret.
It’s outside of any judicial process. You’re not even subject to a
military trial. You can be moved to other jurisdictions under the law.
It’s the antithesis of due process.”

The judges on the appellate court admitted that we as plaintiffs had
raised “difficult questions.”

“This is a way of acknowledging they’re troubled by the apparent lack of
constitutionality of the law,” Afran said during our conversation. “But
they were not willing to face the question head on. So, in effect, they
said, ‘Well, when someone’s threatened with arrest, then we have a
concrete injury.’ But no one’s going to be threatened with arrest. They’ll
simply be arrested. They’re not going to send a letter saying, ‘By the
way, on Thursday next we’re going to place you in military custody.’ 
 The
whole point of the law is that they’re going to come in and take you [in
secrecy].”

The appellate court stated that the law does not apply to U.S. citizens
and permanent residents. In reading the law this way the justices were
saying, in effect, that I and the other plaintiffs had nothing to fear.
Afran called this a “circular argument.” The court, in essence, said that
because it did not construe the law as applying to U.S. citizens and
lawful residents we could not bring the case to court.

“They seem to accept a lot of what we said, namely that the whole history
of the jurisprudence, of the court decisions, is that American civilians
cannot be placed in military custody,” Afran said. “And they accept the
idea that Section E of the statute says, ‘Nothing herein shall be
construed to affect existing authorities as to the detention of U.S.
citizens.’ So on the basis of that they say this is not meant to add any
new powers to the government and since the government doesn’t have power
over civilians in this way the law can’t be extended to civilians. The
problem is by saying there’s no standing, they deprive the district court
of entering an order, saying and declaring that the statue does not apply
to U.S. citizens or permanent residents, lawful residents in the U.S.”

The court, in essence, accepted the principle that citizens cannot be
taken into military custody but refused to issue a direct order saying so
that would be enforceable.

“We have the absurdity of the court of appeals, one of the highest courts
in the country, saying this law cannot touch citizens and lawful
residents, but depriving the trial court of the ability to enter an order
blocking it from being used in that way,” Afran said. “The lack of an
order enables future [military] detentions. A person may have to languish
for months, maybe years, before getting a court hearing. The [appellate]
court correctly stated what the law is, but it deprived the trial court of
the ability to enter an order stopping this [new] law from being used.”

“A law is not constitutional just because habeas corpus says you have a
right to go to court to try to get out,” Afran said in speaking about the
legal mechanism by which someone might challenge custody. “The citizen is
entitled not to be detained in the first place absent probable cause.
Habeas corpus is a remedy of last resort. It’s not there to justify the
use of unconstitutional detention laws.”

The Supreme Court takes between 80 and 100 cases a year from about 8,000
requests. There is no guarantee our appeal will ever be heard. If we fail,
if this law stands, if in the years ahead the military starts to randomly
seize and disappear people, if dissidents and activists become subject to
indefinite and secret detention in military gulags, we will at least be
able to look back on this moment and know we fought back.
This piece was reprinted by Truthout with permission or license. It may
not be reproduced in any form without permission or license from the
source.
Chris Hedges

Chris Hedges spent nearly two decades as a foreign correspondent in
Central America, the Middle East, Africa and the Balkans. He has reported
from more than 50 countries and has worked for The Christian Science
Monitor, National Public Radio, The Dallas Morning News and The New York
Times, for which he was a foreign correspondent for 15 years.
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