Hedges v. Obama: Advantage Hedges so far based on verbatim court notes

Purpose of court hearing — Are the plaintiffs legally entitled to sue?

No 451 Posted by fw, April 3, 2012

“Government lawyers in New York court tell Judge they can’t directly rule out detaining Chris Hedges for reporting, Occupy London for protesting, or the author of a hypothetical book on politics for expressing an opinion, under NDAA sections 1021 and 1022.”Naomi Wolf

The following is a reposting of a piece by the high-profile American author and political consultant, Naomi Wolf, on her blog.  Yes, the post is long but if you are concerned, as Hedges and others prominent activists are, that ambiguity in the National Defense Authorization Act, 2012 would allow for the indefinite detention of citizens then you should read this post and watch the two related videos at the end. I have added several links and tightened up the formatting. To read the original piece, click on the linked title below.

AND DON’T MISS THIS — Wolf ends her notes with Judge Forrest’s sarcastic reply to Obama’s lawyer, which drew laughter in the court.

NDAA Hearing Notes by Naomi Wolf, March 30, 2012

What follows are my verbatim notes from the hearing for the lawsuit by Chris Hedges and other plaintiffs against Barack Obama and other defendants, regarding the NDAA [National Defense Authorization Act, 2012]. The hearing took place all day in Judge Forrest’s courtroom in the Southern District of New York City, yesterday, Mar 29. The purpose of the hearing was to establish ‘standing’ – are the plaintiffs legally entitled to sue? Harm: have they experienced negative outcomes, or ‘chill’ of their speech, because of the NDAA? And ‘redressability’: is the plaintiff’s fear of detention reasonable? The plaintiffs include Pulitzer prize-winning reporter Chris Hedges, Occupy London co-founder Kai Wargalla, journalist Alexa O’Brien, Daniel Ellsberg, Noam Chomsky, and Birgitta Jónsdóttir, an Icelandic parliamentarian who supported Wikileaks’ right to publish. Dr. Cornel West and I are also seeking to join the plaintiffs.

(While the notes are as accurate as I could make them, there are elisions due to the volume of the proceedings; these are noted by lines of asterisks. The court transcript will be available shortly.)

The headlines? Lawyers for the US government, given several chances by Judge Forrest to do so, would not rule out detaining Chris Hedges under the NDAA for reporting,; they would not rule out defining a political book as providing ‘material support’ for terrorists. The Government, given multiple chances by Judge Forrest to do so, also would not or could not give any direct definition of who is included in the phrase ‘associated forces’, or what any example of what it means to ‘provide material support.” And the government did not dispute the validity of a DHS memo that tried to target Occupy Wall St as cyberterrorists.

Some key moments:

Journalist Alexa O’Brien had detailed how Stratfor, a private security firm with links to the US government, and a Federal agent had all sought to intimidate her. The government lawyer was making the case that she could not know that the US government had directed those actions. One security firm manager, she said, had surveilled her organization.

The government attorney asked her if she knew that the government had been behind those actions.

“None. Those things are done in secret.”

At another point she detailed more private security firm surveillance from a second firm.

Government lawyer: “Do you know the government directed him that action?”

O’Brien: “Yes. He went to the NYPD.”

Government attorney: “Strike response as unresponsive.”

O’Brien produced into evidence a DHS [Department of Homeland Security] memo that sought to link US Day of Rage to their cyberterrorism initiative. The government lawyer was given a chance by Judge Forrest to dispute the memo as fraudulent and did not do so.

Kai Wargalla, co-founder of Occupy London, submitted into evidence a memo from the City of London Police Department that categorized Occupy London as a terrorist organization.

Obama lawyer: “What evidence do you have that the government has harmed you?”

Wargalla: “Other than putting my organization on a list of terrorist groups, none.”

Chris Hedges testified: “It is my belief that if Reagan officials had had the power of the NDAA to detain journalists covering conflicts in Nicaragua and El Salvador, they would have used it. “ Government lawyers made the case that nothing has changed since the FISA [Federal Intelligence Surveillance Act] law allowed electronic surveillance, and the NDAA. Hedges said that “Every investigative reporter will tell you that sources have critically dried up since six were charged under the Espionage Act.”

Hedges noted that the difference between FISA and the NDAA was “a quantum deterioration in free speech.” He also said: “NSA [National Security Agency] surveillance has far more effect on my sources than on me,” he said, but “the NDAA is about me.”

Hedges testified that he believed that his phone was being tapped because in El Salvador and now, it would hang up after one ring, which he had been told was the cue for the start of surveillance recording. Asked if he knew his phone had been tapped in El Salvador, he said, “Yes. Because sometimes there would be an open line and I would hear: “Ministerio de Defenso.” Asked by his attorney if he knew what “associated forces’ meant, he said, “I don’t think we know what ‘associated forces’ are. That’s the reason I’m here.”

Obama’s lawyer asked Hedges if he had ever to his knowledge been identified as a terrorist by the US government.

Hedges answered “No.”

In the redirect, Hedges’ lawyer reminded him that he had testified that a US official had advised him, when he had been briefly detained in Saudi Arabia, that he was on a watch list. “What is your understanding of what a watch list is? What are they watching for?”

Hedges: “Terrorists.”

*********************************************************************************

Judge Forrest referred to Obama’s signing statement, noting it referred to ‘trial’ for US citizens but not what kind: “I want to clarify that US citizens wouldn’t be detained without trial. It is unclear what kind of trial they get. Tell me [to government lawyers] what it means to give ‘substantial support.’ I just want one example.”

Government lawyer: “I’m not in a position to give an example.”

Judge Forrest: “Give me one.”

Obama lawyer: “I can only give you context.”

*********************************************************************************

Judge Forrest was pushing to determine the boundaries of the NDAA law.

Obama’s lawyer said that it would take a case of someone being detained under the NDAA, to find the parameters of the law.

Judge Forrest: “Is it really adequate to say you have to go to a DC court, in detention, to figure this out? Are you going to have to wait for courts other than this one to decide who ‘associated forces’ are? Is this the only way we can figure this out?”

She asked the government lawyer for an example of a boundary around “associated forces.”

Judge Forrest: “I don’t want precision. I want a boundary.”

Obama lawyer: “I don’t have specifics.”

Judge Forrest: “Associated forces”? What are they?”

Pause.

Judge Forrest: “If you can’t stand here and say, “1021 won’t touch Ms O’Brien …unless, if you did, we would be done — if you can’t do that, you leave us in a tough spot here.”

***********************************************************************************

Bruce Afran, lawyer for the plaintiffs, presented the hypothetical of a book that did not say how to make a bomb but simply expressed support for the political goals of the Taliban, or that made the case that the Taliban’s view that the US government overreaches in occupying other countries, has merit. He and Judge Forrest discussed the hypothetical that such a book could be a bestseller and be on a book tour, generating comment throughout the Middle East.

Judge Forrest simplified the example to a hypothetical of a book with only one sentence, and whose only sentence read: “I support the political goals of the Taliban’. She asked the government lawyers if such a book could be read as providing ‘material support’ for ‘associated forces” under the NDAA. They did not rule it out.

Judge Forrest pushed: “You are unable to say that [such a book ] consisting of political speech could not be captured under [NDAA section] 1021?”

Obama lawyers: “We can’t say that.”

Judge Forrest: “Are you telling me that no US citizen can be detained under 1021?”

Obama lawyer: “That’s not a reasonable fear.”

Judge Forrest: ‘Say it’s reasonable to fear you will be unlucky [and face] detention, trial. What does ‘directly supported’ mean?”

Obama lawyer: “We have not said anything about that…”

Judge Forrest: “What do you think it means? Give me an example that distinguishes between direct and indirect support. Give me a single example.”

Obama lawyers: “We have not come to a position on that.”

Judge Forrest: “So assume you are a US citizen trying not to run afoul of this law. What does it [the phrase] mean to you?”

Obama lawyer: “I couldn’t offer any specific language. I don’t have a specific example.”

Judge Forrest: “You have said “unwitting’ [i.e. that a US citizen would be exempt from the NDAA if the ‘direct support’ or ‘material support’ was ‘unwitting’] which would offer some comfort if you are worried about running afoul of the law. But ‘unwitting’ is not in here. How do I get ‘unwitting’ here?

Obama’s attorney did not answer her question, but noted the fact that Congress had authorized the AUMF, which they argued the NDAA section 1021 and 1022 followed from.

Judge Forrest; “One of you [of the two US government attorneys] has to answer if a demonstration such as Kai Wargalla’s [in Occupy London] is ‘substantial support.”

Obama lawyer: “We have never taken a position re 1021 that independent advocacy [falls under it].”

Judge Forrest: “And you assert today that the Government does not intend to take that position?”

Obama lawyer: “Well…”

Judge Forrest: “You have to give me that or you have a problem here.”

Obama lawyer: “Well, I’m not aware that anyone is taking that position.”

*****************************************************************************

Bruce Afran made the point that ‘support’ is a very vague term – you can offer ‘emotional support’ to a spouse or ‘financial support’ to an organization. A discussion followed about vagueness in the statute.

Judge Forrest pressed the government attorneys to say exactly what ‘material support’ or ‘substantially support’ meant. She was unable to get a definition from them.

Judge Forrest: “You [government lawyers] have to explain why the statute is not vague if I cannot get a definition under direct questioning [what ‘substantially support’ means]. If you folks can’t say what ‘substantially support’ means, how does an ordinary citizen know? You guys say why, and you win.”

*******************************************************************************

Judge Forrest: “Mr. Hedges — his speaking in Belgium and France [activities his deposition said he had curtailed from fear of the NDAA]: could that subject him to investigation under the NDAA?”

Obama lawyer: “The government has never taken that position in ten years.”

Judge Forrest: “How can you give the plaintiffs comfort that the next person won’t take that position?”

Obama lawyer: “The President says we won’t.”

Judge Forrest noted again that Obama’s signing statement assured people that US citizens would get a “trial”, but that the signing statement does not specify whether it is a military trial or a civilian trial.

Judge Forrest: “They could get a military trial not a civilian trial.”

Obama lawyer: “I would have to look at the statute again.”

Judge Forrest: “It’s extremely carefully worded…President Obama said he was concerned about constitutionality. Ms. Jónsdóttir [the Icelandic Parliamentarian who is afraid of being detained if she comes to the US]: Can she travel to the United States without worrying about being captured?”

Obama lawyer: “The US Embassy represented to her that she won’t be subject to detention and interrogation.” [Ms Jónsdóttir’s affidavit made the point that the US embassy refused to put those assurances in writing, and that the Icelandic government advised her not to travel to the US in that circumstance}.

Judge Forrest: ”I’m asking you as a representative of the United States government here today: Can MS Jónsdóttir travel without fear of capture?”

Obama lawyer made the point that they didn’t know what she’d been up to or whom she had met since her affidavit was given.

Judge Forrest: “Given what you know.”

Obama lawyer: “From what we know, the member would not be subject to 1021.”

Judge Forrest: “So you are saying that being associated with Wikileaks won’t [put one] at risk?”

Obama lawyer: “They are not ‘associated forces.’”

Judge Forrest: “So being associated with Wikileaks would not subject anyone to detention? Sorry to put you on the spot, but that’s my job.”

Obama lawyer:  “Unless they are Al Qaeda or the Taliban under another name, that is correct.”

Judge Forrest distinguished between journalist and US Day of Rage founder Alexa O’Brien, who does not spend time around people identified by the US government as terrorists, and Chris Hedges, who, as a reporter on such groups, does do so.

Judge Forrest, to the Obama attorney: “Can you say he will not subject to … solitary detention?”

Obama attorney: “I cannot say that today.”

Judge Forrest: “Well, why is [Hedges’ fear] unreasonable: if you have an individual engaged on a regular basis with interviewing, travelling with, “associated forces” [in combat with the US] – and you can’t tell us that his activities won’t subject him to 1021 – why is it [Hedges’ fear] unreasonable?”

Obama lawyer: “Given all the factors – looking at this case, looking at them as a whole, they sufficiently rebut reasonable fear at this stage.”

Judge Forrest: “So the nub of it is I must agree with your position that 1021 does nothing new?”

Obama lawyer: “Yes.”

Judge Forrest: “And I should do this in spite of case law that asserts that Congress writes laws for a reason?”

[Laughter in court.]

RELATED VIDEOS

  • Chris Hedges Sues Obama Admin over Indefinite Detention of U.S. Citizens Approved in NDAA — uploaded by democracynow on Jan 17, 2012. Pulitzer Prize-winning journalist Chris Hedges has filed suit against President Obama and Secretary of Defense Leon Panetta to challenge the legality of the National Defense Authorization Act, which includes controversial provisions authorizing the military to jail anyone it considers a terrorism suspect anywhere in the world, without charge or trial. . . . “It is clearly unconstitutional,” Hedges says of the bill. “It is a huge and egregious assault against our democracy. It overturns over 200 years of law, which has kept the military out of domestic policing.”
  • Hedges V. Obama : Chris Hedges Gives Rundown of Day in Court, uploaded by RTAmerica on Apr 2, 2012 – “Last week the case against the National Defense Authorization Act was presented to a judge in New York. One of the plaintiffs in the case has decided to sue the Obama administration claiming that by simply doing his job he could be arrested and detained indefinitely due to the nature of his work, reporting. Chris Hedges, columnist for TruthDig, joins [RT] to explain how his day in court went.”
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