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Chris Hedges
Truthdig / Op-Ed
Published: Tuesday 25 December 2012
If the courts fail us, a gulag state will be cemented into place.

The Final Battle

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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 adequate. 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 asBagram. 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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ABOUT Chris Hedges
Chris Hedges is a weekly Truthdig columnist and a fellow at The Nation Institute. His newest book is “The World As It Is: Dispatches on the Myth of Human Progress.”

They are trying to maintain

They are trying to maintain the illusion of the rule of law as long as possible. That means they think the rule of law is over. If they think it is over, who am I to disagree? It's mob rule, in the worse sense. ... At the Federal Level anyway, and New Jersey is not looking too good either.

The NDAA is of course one of

The NDAA is of course one of the most undemocratic and patently authoritarian moves the Congress and Obama have made since last week. I won't be holding my breath waiting for this Supreme court to undermine it's own authority by deciding against the government. Not with a 5 to 4 fascist majority on the bench. The whole of the NDAA should be proof enough to any doubters that the two "parties", presumably antagonistic to each other, can find lots of things to agree on, including the means by which they can strip the civil liberties to which we've grown accustomed, away.

It is nice to hear Ms. Feinstein sound like a progressive for a change.

Remember when we condemned

Remember when we condemned China and the Soviet Union for doing this same thing?

Thanks, and good luck... we

Thanks, and good luck... we need such challenges.

The NDAA as with too many

The NDAA as with too many other actions taken, or "laws" past by "our" Congress and the Executive, this comes under the heading of Risk Preemption (RP).

RP says that any group, any action, any financial transaction, any person, or any philosophy that the government does not totally understand and know all the details about Is a risk.

And a risk can possibly jeopardize the government, it can destabilize the financial markets, it can endanger the people and the nation, it can destroy the nation.

Consequently if the nations existence can be threatened then any action taken, any violation of law, of the Constitution, or treaty, international law or sovereignty can be violated or ignored. After all what good are all these things if the nation is destroyed?

At least so goes the argument. But of course the problem is that in saving the nation you destroy it.

Our politicians have to learn or be shown or forced to understand that freedom is not always safe. Freedom has inherent risks. As the pubic we must also face this truth. We must give our Politicians the strength to resist the temptation to try Risk Preemption.

As Pogo said some 60 years ago in his comic strip, "We have met the enemy, an he is us."

Or as I say, If you put up with it you deserve it.

If Section 1021(b)(2) defines

If 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.”, then why aren't the officers of HSBC in detention. The hundreds of billions of dollars in transactions that HSBC has admitted was knowingly processed, facilitated, and laundered for terrorist and drug organizations around the globe has to be among the largest support activities that has existed over the last decade. Yet, according to testimony given by Bush administration lawyers, a retired Swiss lady donating money to what she believes is a non-profit helping orphans, but is really a front for terrorists, apparently has a greater probability of ending up in detention than a bank executive who knew exactly what he was doing.

The desk of every executive at HSBC should be covered with the photos of the dead and injured soldiers and civilians of all countries who died as a result of terrorist actions with the sentence in big red letters across the front of the photos "This person died/was injured because of your actions to get a bonus. May you rot in Hell"

Agree with "The corporate

Agree with "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."

You know it is too late when even the "lesser evil leader" of the two-party political powers pro-actively champion preparation of a military police state to protect the elite. Concurreently Obama now champions only a minor slow-down in the rate of tax-transfer of wealth from the many to the few, coupled with offsetting cuts to benefits for the many.
Repeal of the Bush cuts on high incomes preserves TWO THIRDS of the huge tax cuts for the wealthy ushered in by Reagan.

Excellent commentary, Chris.

Excellent commentary, Chris. You are certainly correct about the state being a tool used by the wealthy to keep labor (everyone else) in its "proper" low cost place so resources continue to move upward at an ever accelerating pace. The more people can understand that simple notion, the more likely it will be that people will re-invent their lives around local communities and find ways of "excluding" the state from their lives.

I assume by "woefully adequate" (in reference to the Feinstein-Lee amendment) you mean "woefully inadequate", which I would certainly agree with. Also, your reference to the Korematsu v. United States case is confusing in terms of how it was used by Feinstein and Lee and how you mean for it to be used. Notwithstanding, I believe the Obama Administration (in 2011), possibly in anticipating the importance of that case for a future Supreme Court decision, dramatically reduced its usefulness as a precedent by declaring the 1944 decision invalid. Apparently there was evidence deliberately withheld that could have impacted on the decision of the Supreme Court. This could work in the people's favor when your case gets to the top. It is possible for people who believe in the rule of law to practice the law in its current form while working to change it at the same time. I'm not saying I agree with that approach in this instance, but it does happen. Time will tell. Thanks for your column.

John C. Alessio

The Constitution and the

The Constitution and the TRUTH are Minor Inconveniences and Insignificant Technicalities to trash with law degrees.

The Fourth and Fifth

The Fourth and Fifth amendments are part of the Bill of Rights. Did you mean the Fourteenth and Fifteenth amendments?

Unless you read

Unless you read "Trance:Formation of America" by Cathy O'Brien and Mark Phillips and act upon it, you will not realise that fighting NDAA clauses and other such actions is just shuffling the deck chairs on the Titanic (an entirely appropriate metaphor, since the Titanic that was deliberately sunk was the severely damaged sister ship Olympic rebadged...), and you will not understand how a 9/11 event could be pulled off under the gaze of the average American. You are boxing with the shadows, which is exactly what TPTB want you to do.

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