“Finally, we have a federal judge who stands up for the rule of law.”
No 479 Posted by fw, May 18, 2012
“This is a never-ending battle. The security and surveillance state has already boxed us in, those of us who don’t conform to the official narrative. And this was a tremendous victory, but there are still important issues to be fought. The Espionage Act is a good one, the Authorization to Use Military Force Act itself, the PATRIOT Act, the refusal to restore habeas corpus, of course the FISA Amendment Act, the warrantless wiretapping. There are still other issues that those of us who care about an open democracy have to go out and fight for.” —Chris Hedges
Congratulations to Chris Hedges and his co-plaintiffs for their victory in a lawsuit challenging the National Defense Authorization Act (NDAA), which was signed into law by President Obama. And thanks once more to Democracy Now for reporting the story. The video of Amy Goodman’s interview of Chris and the group’s lawyer, Bruce Afran, appears below along with my abridged transcript and subheadings. To access the complete transcript and video, click on the following linked title.
Journalist, Plaintiff Chris Hedges Hails “Monumental” Ruling Blocking NDAA Indefinite Detention, Democracy Now, May 17, 2012.
Amy Goodman — A federal judge Wednesday struck down part of a controversial law signed by President Obama that gave the government the power to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial, including U.S. citizens. The ruling came in a lawsuit challenging the National Defense Authorization Act, or NDAA, filed by a group of journalists, scholars and political activists including Noam Chomsky, Daniel Ellsberg, Chris Hedges, Naomi Wolf and Cornel West. Judge Katherine Forrest of the Southern District of New York struck down the indefinite detention provision, saying it likely violates the First and Fifth Amendments of U.S. citizens. The judge rejected the Obama administration’s argument that the NDAA merely reaffirmed an existing law recognizing the military’s right to perform certain routine duties.
Hedges on the significance of the ruling
In essence, it invalidates Section 1021, that permits the U.S. government to use the military to hold American citizens, strip them of due process, and detain them in military facilities, including our offshore penal colonies, until, in the language of that section, the end of hostilities. So, it’s monumental, because she threw the whole thing out. She invalidated the law. It was quite a courageous decision—I think, clearly, a correct one. But we have watched the federal courts, in particular, file opinion after opinion as to sort of why they can’t implement the law—rather, why they can or why they should. And so, this becomes, yes, a really important decision.
Hedges explains why he sued President Obama
I, as a foreign correspondent, had had direct contact with—when Bruce [Afran] and Carl Mayer and I went through the list, the State Department terrorism list—17 organizations that are on that list, from al-Qaeda to Hamas to Hezbollah to the PKK, and there’s no provision within that particular section to exempt journalists. The language is amorphous: anybody who “substantially supports” — whatever that means — not only the Taliban or al-Qaeda, but what they term “associated forces.” And so, the decision to file the lawsuit was made by Bruce and Carl, who came to me because they thought that I would be a particularly credible plaintiff, and it turns out, I think, and the judge acknowledged that that was the case.
Afran talks about the significance of the extent to which this statute was struck down
Well, it’s quite incredible, in a sense, because it’s rare that statutes are struck down completely. Judge Forrest struck down the entire provision of the NDAA governing indefinite detention of civilians and U.S. citizens. She said this provision is overbroad. She said it clearly embraces speech, even if it doesn’t intend to. And she criticized the government severely, because it refused to acknowledge in court that First Amendment activities would not bring someone into a state of indefinite detention. And five times, Judge Forrest asked the U.S. attorney, “Will you agree that First Amendment activities will not bring someone under the scope of this law?” And the government five times said, “We can’t answer that question.”
Afran on the meaning of First and Fifth Amendment activities in the context of NDAA
The First Amendment itself protects all speech activities. And speech is absolutely protected, minus very limited categories. So here we have Chris Hedges, we have other plaintiffs, Alexa O’Brien, we have Tangerine Bolen, who are active as advocates and writers. And their conduct is clearly expressive. So that’s what we mean by First Amendment activities. The speaking about other organizations’ activities—not endorsing terrorist groups, but informing people of what they believe—all of this is First Amendment activity. And the government refused to say this will not bring someone within the scope of the statute. And so, the judge reacted very harshly to this.
The Fifth Amendment deals with due process. You can’t lose your liberty, you can’t be detained, unless there’s some clear statute that gives you notice of the wrongful conduct. And that can never happen for protected conduct. So the First Amendment and due process under the Fifth Amendment both work together.
Afran on Judge Forrest
She was appointed by President Obama. She was a judge in the field of communications—a lawyer in the field of communications law. She’s clearly cognizant of free speech issues, and she took this case to heart. She really accepted our premises, and she was very, very critical of the government’s position, which simply refused to acknowledge the validity of expressive conduct as something that protects a person from incarceration.
Hedges on the origins of the National Defense Authorization Act and Section 1021
What’s interesting is, when you look at the polls, there’s almost no support for this piece of legislation at all. I think it’s about 70 percent oppose it. And yet, of course, once again, it passes with bipartisan support. The bill was sponsored by Carl Levin, a Democrat, and John McCain, a Republican. When Dianne Feinstein tried to insert language into the bill that would have exempted U.S. citizens from this process, it was rejected by both the Democratic Party and the Obama White House. And so, I think this is another window into not only the sort of steady assault against civil liberties, whether that’s the use of the Espionage Act, the FISA Amendment Act, the Authorization to Use Military Force Act itself, the PATRIOT Act. And what makes what happened yesterday so monumental is that, finally, we have a federal judge who stands up for the rule of law.
Hedges speculates on what could have led Obama to sign a bill that was opposed by key members of his administration
That’s what’s so interesting. None of the Pentagon, the FBI, as you—Mueller and everyone else, as you pointed out—none of them supported the bill, even to the extent where Mueller and others were testifying before Congress that it would make their work more difficult. And yet it passes anyway. And it is a kind of—I think it’s a kind of mystery to the rest of us as to what are the forces that—when you have the security establishment publicly opposing it, what are the forces that are putting it in place? And I can only suppose that what they’re doing is setting up a kind of legal mechanism to criminalize any kind of dissent. And Bruce can speak to this a little more. But in the course of the trial, with Alexa O’Brien, US Day of Rage, that WikiLeaks dump of five million emails of the public security firm Stratfor, we saw in those email correspondence an attempt to link US Day of Rage with al-Qaeda. Once they link you with a terrorist group, then these draconian forms of control can be used against legitimate forms of protest, and particularly the Occupy movement.
Afran: “It’s so incredible that the President and the Democratic Party are deaf to the reality of what is an American value”
A coalition of conservative groups—Downsize DC, the 10th Amendment Foundation, others. And really, there’s a place where liberals and conservatives meet, on these very issues. Conservatives are just as opposed to this as liberals, which is what Chris is saying. And it’s so incredible that the President, you know, and the Democratic Party are deaf to the reality of what is an American value.
Afran calls on Obama to make the ruling a permanent injunction
Well, technically, there could be a trial on a full issue of a permanent injunction. That very rarely ever happens. Usually, the government will appeal. They have 60 days to appeal. We don’t know what will happen. We, Carl Mayer and I, my co-counsel, are calling on the government to issue a permanent—agree to a permanent injunction, put this permanently, you know, under a rule that it is unconstitutional and can’t be enforced. Right now it is illegal. The judge has put a hold on it. And we’re calling on the President to agree to make it a permanent injunction.
Hedges sees this victory as part of a “never-ending battle”
This is a never-ending battle. The security and surveillance state has already boxed us in, those of us who don’t conform to the official narrative. And this was a tremendous victory, but there are still important issues to be fought. The Espionage Act is a good one, the Authorization to Use Military Force Act itself, the PATRIOT Act, the refusal to restore habeas corpus, of course the FISA Amendment Act, the warrantless wiretapping. There are still other issues that those of us who care about an open democracy have to go out and fight for.
Chris Hedges is senior fellow at the Nation Institute. He is a former foreign correspondent for the New York Times and was part of a team of reporters that was awarded a Pulitzer Prize in 2002 for the paper’s coverage of global terrorism. He is the author of a number of books, including Death of the Liberal Class and The World As It Is: Dispatches on the Myth of Human Progress. He is a plaintiff in a lawsuit challenging the National Defense Authorization Act.
Bruce Afran is the lawyer representing Chris Hedges and other plaintiffs in a lawsuit challenging the National Defense Authorization Act.
- Hedges v. Obama: Advantage Hedges so far based on verbatim court notes — “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.”