http://www.nationofchange.org/final-battle-1356445505
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
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 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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This article was published at NationofChange at:
http://www.nationofchange.org/final-battle-1356445505.
http://www.MitchelCohen.com
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