The Final Battle

By Chris Hedges

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 

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 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.

This article was published at NationofChange at: 

Ring the bells that still can ring,  Forget your perfect offering.
There is a crack, a crack in everything, That's how the light gets in.
~ Leonard Cohen