US Attorneys Refuse to Assure Judge That They Are Not Already Detaining Citizens Under NDAA
posted by Keito
2012-08-12 11:46:03'The US government seems determined to have the power to do away with due process and Americans’ right to a trial.
I am one of the lead plaintiffs in the civil lawsuit against the National Defense Authorization Act, which gives the President the power to hold any US citizen anywhere for as long as he wants, without charge or trial. In May, following a March hearing, Judge Katherine Forrest issued an injunction against it; this week, in a final hearing in New York City, US government lawyers essentially asserted even more extreme powers – the power to entirely disregard the Judge and the law. Indeed, on Monday, August 6, Obama’s lawyers filed an appeal to the injunction – a profoundly important development that as of this writing has been scarcely reported.
In the March hearing, the US lawyers had confirmed that yes, the NDAA does give the President the power to lock up people like journalist Chris Hedges and peaceful activists like myself and other plaintiffs. Government attorneys have stated on record that even war correspondents could be locked up indefinitely under the NDAA. Judge Katherine Forrest had ruled for a temporary injunction against an unconstitutional provision in this law – after government attorneys refused to provide assurances to the court that plaintiffs and others would not be indefinitely detained for engaging in first amendment activities. Twice the government has refused to define what it means to be an “associated force”, and it claimed the right to refrain from offering any clear definition of this term, or clear boundaries of power under this law. This past week’s hearing was even more terrifying: incredibly, in this hearing, Obama’s attorneys refused to assure the court, when questioned, that the NDAA’s provision – one that permits reporters and others who have not committed crimes to be detained without trial -- has not been applied by the US government anywhere in the world -- AFTER Judge Forrest’s injunction. In other words, they were saying to a US judge that they could not or would not state whether Obama’s government had complied with the legal injunction that she had lain down before them.
To this, Judge Forrest responded that if the provision has indeed been applied, the United States government itself will be in contempt of court. Government attorneys also, in this hearing, again presented no evidence to support their position -- and brought forth no witnesses.
I have mixed feelings about suing my government, and in particular, my president, over the National Defense Authorization Act. I voted for Obama. I even had an Obama dance; and I could not stop crying for joy and pride the night he was elected. I defended him for over two years.
But no longer. The US public often ignores his actual failings, and more importantly, entirely ignores how, when it comes to the “war on terror”, the US government as a whole has been deceitful, reckless, even murderous. We lost nearly 3000 people on 9/11. Then we allowed the Bush administration to lie and force us into war with a country that had nothing to do with that terrible day: we killed between several hundred thousand and one million Iraqi citizens, caused vast harm to our own soldiers and gutted this nation’s treasury for a war that never should have happened. Given these crimes, it is no wonder that Bush, Obama, and the US Congress appear now to be far more interested in enacting misguided, “boogieman in every corner” “war on terror” policies that distract citizens from investigating the truth about what we’ve done, and what we’ve become, since 9/11.
I, like many in this fight, am now afraid of my government. We have good reason to be. Due to the NDAA, Chris Hedges, Kai Wargalla, the other plaintiffs and I are squarely in the crosshairs of a “war on terror” that has been an excuse to undermine liberties, trample the US Constitution, destroy mechanisms of accountability and transparency, and cause irreparable harm to millions. Several of my co-plaintiffs know well the harassment and harm that they incur from having dared openly to defy the US government’s narrative: court testimony included government subpoenas of private bank records of Icelandic Parliamentarian Birgitta Jonsdottir, Wargalla’s account of having been listed as a ‘terrorist group”, and Hedges’ concern that he would be included as a “belligerent” in the NDAA’s definition of the term – because he interviews members of outlawed groups as a reporter – a concern that the US attorneys refused on the record to allay. Other advocates have had email accounts consistently hacked, and often find their electronic communications corrupted in transmission – some emails vanish altogether – a now-increasing form of pressure that supporters of state surveillance and intervention in the internet often fail to consider.
I’ve been surprised to find that most people, when I mention that I am suing my president, Leon Panetta, and six members of Congress (four Democrats and four Republicans), thank me – even before I explain what I’m suing them over! And when I do explain the fact that I and my seven co-plaintiffs are suing over a law that suspends due process, threatens first amendment rights and takes away the basic right of every citizen on this planet to not be indefinitely detained without charge or trial, their exuberance shifts, and a deeper gratitude shines through their newly somber demeanors. But this fight has taken a personal toll on many of us, including myself. This winter, as I led the campaign to amend this lawsuit and was working over 80 hours per week to get everything ready, I suddenly ended up in the emergency room, and have subsequently endured six months of a debilitating neurological illness. Thus, I have relied on an international team of volunteers, whose courage and energy has led them successfully to garner support for a lawsuit that is an attempt to restore our most fundamental of liberties.
My government seems to have lost the ability to tell – and, perhaps, even to know -- the truth about the Constitution any more. I and many others have not. We are fighting for due process and for the First Amendment; for a country we still believe in; and for a government that is still legally bound to its Constitution.
If that makes us their “enemies”, then so be it. As long as they cannot call us “belligerents”, lock us up and throw away the key – a power that, incredibly, this past week US government lawyers still asserted is their right to claim . Against such abuses, we will keep fighting.
I am no radical; I am simply a moderate Democrat, suing my out-of-control government. For the sake of people everywhere, I sincerely hope we win.
For more details go to: http://stopNDAA.org'
Is the National Defense Authorization Act Unconstitutional?
posted by Keito
2012-08-12 11:46:37'The question being argued in federal court in Lower Manhattan yesterday boiled down to this: Is a law authorizing the indefinite military detention of American citizens with only the barest recourse to civil courts constitutional?
The lawsuit against the Obama administration was filed in January by seven journalists and activists, including Chris Hedges, Noam Chomsky, Naomi Wolf, and Daniel Ellsberg. The suit challenges sections of the 2012 National Defense Authorization Act, which authorize the armed forces to detain
"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 act would allow citizens to be detained in overseas military facilities like Guantanamo "until the end of hostilities."
The problem, the plaintiffs argue, is that this language is so vague as to possibly cover all kinds of activity protected by the First Amendment. What is "substantial support?" What are "associated forces?"
For Hedges, a journalist who has spent much of his career meeting and talking with groups and individuals considered terrorists by the U.S. government, the language was chilling.
In his complaint, Hedges argued that the law violated First Amendment protections of speech and association, constitutional guarantees for citizens' access to a civil court system, and Fifth-Amendment due process guarantees.
Judge Katherine Forrest agreed. In a 68-page May ruling, Forrest granted a preliminary injunction blocking the challenged provisions of the act.
"There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote in granting the temporary injunction. "There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention."
But the temporary injunction of the law was just the first round in the case. Hedges and his fellow plaintiffs were asking the court for a permanent injunction. In a four-hour hearing yesterday, lawyers for the plaintiffs and for the government reargued their cases before Judge Forrest, who interrupted frequently with her own questions and opinions.
Assistant U.S. Attorney Benjamin Torrance repeated his argument that the law signed by Obama on New Year's Eve doesn't actually do anything new, but rather reiterates powers already conferred by the Authorization for the Use of Military Force passed by Congress shortly after 9/11.
That argument didn't persuade Forrest, and she told him so. But it also posed further complications for the administration's case. If the challenged NDAA provisions really didn't change anything, why was the government ready to go to the mat to defend them? Perhaps more troubling, Torrance admitted that the government doesn't specify whether detainees are held under the NDAA provisions or under the Authorization for the Use of Military Force. Consequently, the government was continuing to detain people covered by the challenged provisions in spite of the court's injunction.
Carl Mayer, one of the plaintiff's attorneys, said later that he and his colleagues were considering bringing contempt of court charges over what he called an apparent disregard for the court injunction.
Torrance judge Forrest that for her court to overturn congressional legislation on national security matters would be to overstep the role of the judiciary, but Forrest wasn't so sure. She cited a passage by Alexander Hamilton inFederalist Papers Number 78, "which I'm quite enamored with:"
"Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
Another of the administration's arguments is that the government hasn't so far used the law to detain journalists like Hedges, so fear that it might is unreasonable.
David Remes, one of the plaintiff's lawyers, said that wasn't the point. "The danger posed by the sword of Damocles is not that it falls, but that it can fall," he said.
Forrest also appeared unconvinced, noting that a national election could soon install a new administration with a new set of intentions and interpretations. She quoted Chief Justice John Roberts's ruling in a 2010 case: "The First Amendment protects against the government," Roberts wrote. "It does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it reasonably."
Torrance said the law still allows room for judicial oversight, because people detained under the act can file habeas corpus petitions.
"How long does a petition take?" Forrest asked.
Torrance said he didn't have the numbers in front of him.
"Several years, right?" Forrest prompted.
Torrance allowed that might be true, but noted that in most habeas petitions in the post-9/11 era, courts have found the detention legitimate.
Forrest closed the hearing with a promise that she had not yet made her mind up, Hedges and his lawyers said her earlier ruling on the temporary injunction and her close questioning of Torrance gave them cause for optimism.
Perhaps sensing which way the wind is blowing with Judge Forrest, the Obama administration has already filed an appeal in higher court.'