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NDAA, Indefinite Detention, And The Battle Raging Against The Most Important Law You’ve Never Heard Of
Imagine the American political spectrum as a steel rod.
On the far left are stalwarts of the progressive liberal movement forged in academia and protest movements from the 1960s and ’70s. The furthest point to the right is a blend of neoliberal free-market ideologues and libertarians fused together to form the extreme core of the modern conservative movement. Most Americans lie somewhere between these two extremes—two camps that for the better part of the past half century have drifted further and further apart.
Now imagine a single issue that is so heavy, it bends our ideological steel rod into a perfect circle that unites both sides. Conservatives and liberals perfectly aligned; dogs and cats living together.
Such is the weight of Section 1021 of the National Defense Authorization Act of 2012, a provision so potentially destructive to our democracy that it has galvanized both liberal and conservative activists alike. Known as the indefinite detention provision, it deals with the circumstances under which the government has authority to detain persons deemed to be supportive of terrorism. According to the U.S. government, the section was adopted as part of the NDAA—a bill that is passed at the end of every fiscal year to organize military funds and clarify, but not alter, existing legislation granting certain powers to the president to fight terrorism—and does nothing to broaden the scope of existing authority.
Opponents of the law, including Pulitzer Prize-winning journalist Chris Hedges, famed Pentagon Papers whistleblower Daniel Ellsberg and world renowned linguist and political theorist Noam Chomsky, among others, contend Sec. 1021 allows the president of the United States to militarily detain U.S. citizens without due process, thus violating the First, Fifth and Fourteenth amendments of the Constitution, powers not seen in the United States since the controversial internment of Japanese-Americans during World War II.
They and four other respected journalists and activists—Tangerine Bolen, Icelandic Parliament member Birgitta Jónsdóttir, Alexa O’Brien and Kai Wargalla, collectively dubbed “The Magnificent Seven”—argue as much in a federal lawsuit against the Democratic president.
“The deterioration of civil liberties under the Obama Administration has complete continuity with the attack on civil liberties under the Bush Administration,” Hedges told hundreds of supporters outside the Thurgood Marshall Courthouse Second Circuit Court of Appeals Feb. 6, following oral arguments from both sides of the issue. “In fact, under the Obama Administration it has been worse. The radical interpretation of the 2001 Authorization to Use Military Force Act [AUMF] has given the U.S. government, in particular the executive branch, the right to assassinate American citizens.”
“This case is one of the most important cases in decades,” added Ellsberg, continuing that the provision “overturn[s] 200 years of domestic law to allow the military onto our streets” and hold those suspected “indefinitely.”
Notwithstanding assurances from President Obama nor the Department of Justice, a federal judge— U.S. District Court Judge Katherine Forrest, who the president himself appointed to the bench—ruled 1021’s language unconstitutional, issuing a permanent injunction on its implementation of indefinite detention in September 2012. The Obama Administration appealed the following day, and the Second Circuit Court of Appeals issuing a stay on the injunction pending the outcome of the government’s appeal. Thus, the Feb. 6 hearing.
Despite the significance of the act and the prominence of those who oppose it, chances are you haven’t even heard of it. There has essentially been a mainstream media blackout surrounding the NDAA, save for some intrepid reporting and editorials in The New York Times and a handful of alternative media outlets. Yet it has ignited a firestorm in the blogosphere and, depending upon the outcome of the court case already in federal appeals court, it may eventually, hopefully, reach public consciousness.
The language of the provision, authored in secret by Senators John McCain (R-AZ) and Carl Levin (D-MI), was troublesome from the beginning, enough so that several of their colleagues recoiled immediately upon reading the text for the first time. Senators Udall (D-CO) and Feinstein (D-CA) even attempted to pass legislation to effectively unwind or, at a minimum, diminish its scope.
1021’s language is also vague, using such ambiguous terms as “associated forces,” “directly supported” “substantially supported”—and for the first time, introducing the “Law of War”—without precise definitions.
Members of Congress weren’t the only ones to take notice. Bruce Afran and Carl Mayer, New Jersey-based civil rights attorneys, sounded the alarm almost immediately and determined to bring suit against the government. The key, according to Mayer, was to find a plaintiff who could provide “standing” in the lawsuit, which is to say, someone whose profession or routine expression of speech clearly placed him or her at risk of detention under Sec. 1021. Enter Hedges, an old friend who happens to be one of the most fearless and celebrated journalists of our time. A former foreign correspondent for The New York Times, he understood the gravity of the provision and took on the role of lead plaintiff for the case.
Hedges boils the government’s motives down to a primary objective, telling the Press: “They want to empower the military to be able to maintain order. That’s it. Otherwise, they wouldn’t do it.”
Yet before examining the allegations against the government it’s important to stress that this is not a lawsuit against President Obama that is secretly funded by a right-wing organization. Every one of the plaintiffs can be considered on the far left of the spectrum, banded together in a case against a Democratic president over what they feel is perhaps the greatest threat to free speech in modern U.S. history. And each has demonstrated legal standing in this case.
Forrest’s ruling was not only a resounding victory in favor of the plaintiffs; her opinion was a blistering rebuke of the government’s case.
“The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights,” she wrote. “To the extent that § 1021(b)(2) purports to encompass protected First Amendment activities, it is unconstitutionally overbroad.
“A key question throughout these proceedings has been, however, precisely what the statute means—what and whose activities it is meant to cover,” continued Forrest. “That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties.
“The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties,” she added. “Here, the stakes get no higher: indefinite military detention—potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity—and that specificity is absent from § 1021(b)(2).”
Shockingly, it’s also Forrest’s opinion that the provision may in actuality be a codification of liberties the government has already taken—a way to legalize unconstitutional detentions that have and are already taking place, such as those at the United State’s detention camp in Guantanamo Bay, Cuba.
“Section 1021 appears to be a legislative attempt at an ex post facto ‘fix’: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF.”
The Second Circuit Appellate judges reserved their decision on the government’s challenge to Forrest’s ruling Feb. 6, suggesting to Afran and Mayer that they would defer it until after the resolution of another case—Clapper v. Amnesty International, which challenged a 2008 amendment to the Foreign Intelligence Surveillance Act, or FISA, which broadened the government’s authority to eavesdrop on international emails and phone calls.
The Supreme Court turned back that challenge Feb. 27, likely meaning its justices will never rule on its constitutionality. What this decision means for the NDAA battle remains anyone’s guess.
That the NDAA case now before the Court of Appeals will also eventually be appealed to the highest court in the land, no matter what side wins, is inevitable. What its justices may rule, if they even decide to hear the case, is also anyone’s guess.
Regardless, the battle sparked by Mayer and Afran’s handful of journalists and activists will determine the course of our entire democracy far into the foreseeable future, and the plaintiffs would argue, is the last hope to save it.
THE WAR ON TERROR
For centuries, wars were affairs of nations. Governments waged war on one another in the name of nationalism, religion or unrestrained imperialism. Borders were established and re-established. Conflicts and enmity could last centuries, but every war had a beginning and an end. And there were rules.
The industrial age witnessed the dawning of the most significant war power in human history: the United States of America. For the better part of the 20th century, America was the world’s hammer; at times deterring or settling conflict abroad, at other times exporting warfare with hawkish enthusiasm. In every battle, the case was made for the defense of the homeland and democracy and our fury was unleashed on discernible foes.
In September of 2001, America’s understanding of war was forever changed. Our foe was now amorphous. We targeted a figurehead named Osama bin Laden, but he had no army, no country, no borders to protect and no assets to be taken. There were no sanctions to levy, or threats that mattered.
This was Jihad. America was at war with an idea. America was being terrorized.
In the days immediately following the attacks on the World Trade Center and the Pentagon Congress gave the Bush Administration unprecedented authority to wage full-scale war on terror. On September 14 of 2001 Congress passed the Authorization for Use of Military Force (AUMF) allowing the executive branch to leverage all available military assets to bring to justice combatants deemed responsible or materially supportive of forces associated with the terrorist attacks of 9/11.
It was under this authority that the United States government declared war first in Afghanistan and then Iraq shortly thereafter. It is under this authority as well that the executive branch has carried out everything from covert assassinations to drone strikes in countries such as Pakistan, Yemen and Somalia. The plaintiffs in the Hedges suit allege that the language in Sec. 1021 is a significant departure from the scope and intent of the AUMF and that it granted new, sweeping military authority to the executive branch of, including the power to militarily detain U.S. citizens.
Put simply, the plaintiffs have argued that Sec. 1021 grants the president of the United States exclusive authority to detain citizens without due process and “until the end of hostilities.”
Because the War on Terror is indeed an open-ended battle against an amorphous enemy, it is fair to state that we will be at war for an indeterminable period of time. In fact, the government has effectively argued as such.
It’s hard to imagine the U.S. government ever declaring an end to the War on Terror and Hedges’ attorney, Carl Mayer, is keeping score. Standing in his lower Manhattan office shortly after oral arguments before the appellate court Feb. 6 he tells the Press, “We’ve been at war now for 4,163 days by my count… the longest war in American history by far. Twice as long as World War I and longer than World War I and World War II combined.” The idea of perpetual war is important to establishing the plaintiff’s fear of detention, he explains, because “during that time the government keeps expanding the definition of who a terrorist is and everything has become terrorism.”
When Afran and Mayer discussed the case with Hedges in order to determine whether or not Hedges could credibly claim standing in the suit, it was instantly apparent to the trio that he did. In fact, in the course of his tenure as a foreign correspondent, Hedges had intimate contact with 17 organizations on the government’s terrorism watch list including Hezbollah, Hamas, al Qaeda and the Taliban, to name a few. Their argument was that Sec. 1021 was so vague with respect to what constituted a U.S. citizen’s involvement with a terrorist organization that Hedges had a reasonable fear of being militarily detained. So far, the courts have agreed with this contention.
Perhaps that’s because the secretive detention of U.S. citizens is already taking place, in pseudo-black-ops prisons right here on American soil.
Long Islander Andrew Stepanian knows this all too well. He’s one of the few who’ve seen the inside of these facilities and made it out to tell the world. Actually, he was the first.
Stepanian, an animal rights activist and co-founder of grassroots activism publicity agency The Sparrow Project, was convicted of conspiracy to violate the Animal Enterprise Protection Act in 2006 and served the last six months of his three-year sentence at one of these prisons, known as Communication Management Units (CMUs)—also referred to as “Little Gitmos” by their guards, he says, and “Guantanamo North” by critics.
There are two known CMUs in the United States: tucked inside the U.S. Penitentiary in Marion, Ill., where Stepanian was transferred, and within the Federal Correctional Complex in Terre Haute, Ind.
He describes the Marion CMU as “a prison within a prison,” with much stricter surveillance of all forms of communication among inmates—whether telephone, mail or visits—than those incarcerated within the rest of the federal prison system.
“It’s actually isolated from the rest of the larger prison populous, and it’s also isolated from the staff of the prison,” says Stepanian, whose firm has done PR work for the Hedges suit as well as the Occupy Wall Street Movement. “The people that essentially police the communications management unit are instructed not to communicate with the prisoners that are there.”
Federal lawsuits challenging the constitutionality of the units offer more details.
All phone calls and visitations are subject to recording and monitoring, with “no-contact” visits and “English-only” telephone conversations and visits, unless previously scheduled and conducted through “simultaneous translation monitoring,” state documents in a 2010 complaint on behalf of CMU prisoners, including inmates who are American citizens that had been serving sentences for non-terrorist-related crimes.
The suit alleges First, Fifth and Eighth Amendment violations as well as violations of the Administrative Procedures Act, a federal law dictating how government agencies, in this case the U.S. Bureau of Prisons, propose and implement regulations. Additionally, it charges the plaintiffs’ very assignments to the isolated units were discriminatory and retaliatory, since “All Plaintiffs have been classified by the BOP as low or medium security, and were designated to the CMU at the Federal Correctional Institution in Terre Haute, Indiana or the U.S. Penitentiary in Marion, Illinois despite having a relatively, and in some cases, perfectly, clean disciplinary history.”
All this flies in the face of what the U.S. Bureau of Prisons’ official explanation of what dictates transfer to CMUs.
“The purpose of CMUs is to provide an inmate housing unit environment that enables staff to more effectively monitor communication between CMU inmates and persons in the community,” a spokesman for the Bureau of Prisons (BOP) tells the Press in an emailed statement for this story. “Examples, although not an all inclusive list, of the types of inmates who may be housed in a CMU, include: Inmates who have been convicted of, or associated with, international or domestic terrorism; Inmates who repeatedly attempt to contact victims or witnesses, including those who threaten, harass and intimidate victims or witnesses; Inmates with a personal history of, or prior offense conduct or conviction for, soliciting minors for sexual activity; Inmates with court ordered communication restrictions; Inmates who attempt to coordinate illegal activities via approved communication methods while incarcerated; and Inmates who have extensive disciplinary histories for the continued misuse/abuse of approved communication methods.”
Another explanation could be another tidbit from the lawsuit—the fact that the vast majority of inmates incarcerated at the CMUs —“upwards of two-thirds,” the suit states—are Muslim.
Stepanian supposes that’s why he ended up there—adding that for the majority of his incarceration prior to his transfer, he was housed in a medium-security prison and had been participating in programs and activities, and staying out of fights and disruptions, things that would lower his security classification, not raise it.
“My time spent there was only to create balance,” he says. “Because the unit was over 70 percent Muslim. And what they were trying to do, in my eyes, was offset that majority balance with individuals that at least fit some sort of criterion of people that could be designated to this unit, when originally I believe that the units were created to house Muslims in this kind of post-9/11 vacuum, and they need to make sure that it’s not an ethnic discrimination lawsuit powder keg waiting to explode.”
Stepanian says he was told as much.
“One of the guards in there referred to me as a balancer,” he says. “I was doing my laundry by myself. A guard came up to me and was just like, ‘Hey, kid, keep your head up, you’ll be out of here soon enough. You’re just here for balance, man, just relax, okay.’ I said, ‘Just here for balance?’ He’s like, ‘Yeah, man, this thing’s a lawsuit waiting to happen.’”
The BOP says there are presently 40 inmates assigned to Terre Haute’s CMU and 41 at Marion. The agency was unable to provide a breakdown of these inmates by ethnicity, religion and citizenship by press time.
Stepanian’s not denying that some of his fellow inmates were suspected terrorists—through his conviction for involvement with the international animal rights campaign Stop Huntingdon Animal Cruelty [SHAC, whose cause was to close animal-testing laboratory Huntingdon Life Sciences], he’s branded a “terrorist” too, something some right-wing groups will not let him live down—but impressing that the government can’t simply circumvent civil liberties in the name of national security.
“You can’t sidestep due process, you can’t sidestep the Constitution when it comes to detaining someone,” he says. “And that’s not [the plaintiffs] saying that people that are involved with criminal activity or involved with terrorist organizations shouldn’t be detained. They should completely be detained. You should just abide by the law when you do so. You can’t just ship them off someplace, with no rights, no access to trial and no due process, nothing, to some black site.”
Hedges views the NDAA as the final sinister step in what has been a long deterioration of Americans’ civil liberties in the name of government-sponsored corporate personhood, whereby the financial well-being of Big Business takes precedence over individuals’ Constitutional rights.
“We’ve undergone a corporate coup d’ etat,” he blasted outside the courthouse Feb. 6 to NDAA opponents, many carrying signs. “There is no impediment left now to corporate power, and the corporate state understands that as the economy continues to deteriorate as the effects of climate change—and we just bore the brunt of that with Hurricane Sandy over $70 billion worth of damage kicks in—there will be an inevitable blowback on a betrayed population. And what’s happening in this court now is the last thin line of defense between protecting what is left of our anemic democracy and the imposition of a military state.”
“It’s all connected,” he said later that evening at a panel discussion organized by The Sparrow Project, which included Mayer and Afran; co-plaintiffs Tangerine Bolen, Daniel Ellsberg and Alexa O’Brien; Government Accountability Project National Security and Human Rights Director Jesselyn Radack; National Security Agency (NSA) whistleblower Thomas Drake; and documentary filmmaker Michael Moore. “It’s all a part of this very rapid descent into a frightening form of corporate totalitarianism…and as we go down, and they know we’re going down, these forces are cannibalistic.
“Forty percent of the summer arctic sea ice melts and here we’re literally watching death throes of the planet and these corporations like Shell look at it like a business opportunity,” he continued. “They know only one word, and that’s ‘More.’ They have commodified everything, human beings are commodities, disposable commodities, the ecosystem is a disposable commodity and now with no impediments they will push and push and push, it makes Herman Melville’s Moby-Dick, which I’m just re-reading, the most pressing study of the American character.
“They’re not going to stop themselves, the formal mechanisms of power are not going to stop them,” Hedges added. “It’s up to us.”
The legal stage for the next chapter of the NDAA battle has been set.
Whether the three appellate judges weighing the Feb. 6 oral arguments will side with Forrest, Hedges and the rest of “The Magnificent Seven,” or the Obama Administration, whoever loses will appeal the case to the Supreme Court.
If the high court’s justices elect not to hear the case, as was their Feb. 27 ruling against Clapper, then whatever the Second Circuit Court of Appeals decides will forever be law. Though the Clapper decision may indicate to some the justices inclination to find in the favor of the Obama Administration, Afran, believes that’s not the case.
“It’s different,” he tells the Press, “because here [Hedges v. Obama], the journalists are in fact directly within the scope of the law. But in the Clapper case the journalists were not the subject of the wiretaps but they happened to interview people who were. And so, they were not directly harmed by the statute. But here [in Hedges v. Obama], the journalists are harmed or brought within the statute.”
If the Supreme Court does hear the NDAA case, the publicity over the decision, regardless of what it is, will undoubtedly make it to the ears of the unsuspecting public—but by then, say opponents, it will be too late.
Just what’s at stake was most concisely outlined at an evening panel discussion organized by The Sparrow Project following the Feb. 6 Court of Appeals hearing in Manhattan.
Topics ranged the gamut, from the lack of transparency plaguing the case of Bradley Manning, the U.S. Army Private accused of leaking classified materials to Wikileaks and Obama’s use of drones, to Occupy Wall Street and major corporations’ power and influence on elected officials and the legislative process.
Each panelist weighed in on the importance of defeating 1021.
“It’s a retroactive attempt to legislatively fix the fact that they didn’t have these powers all these years and they were probably using them,” said Tangerine Bolen, executive director of Revolution Truth, who’s responsible for compelling several of the plaintiffs to join Hedges in the suit. “This case is the latch on Pandora’s Box, and it needs to be addressed, because what they would like to see is have it be swept under the rug and disappear, because we’re a threat to the fact that they haven’t been behaving well for quite a long time, and that’s quite obvious. “This has been a long road for all of us,” she told the packed theatre. “I think I can safely say that some of us have sacrificed greatly to engage in this lawsuit and we do so because we have every reason to fear the United States government and what it has become since 9/11.”
Alexa O’Brien, a journalist and founder of the U.S. Day of Rage, talked about an alleged plot to link her group to Islamist fundamentalist movements, a plan exposed on Wikileaks and by confidential sources who apprised O’Brien of this effort. Fear of detention under 1021, she said, has already had a chilling effect on her.
“I don’t have a capacity of a large bank account and a team of lawyers to protect me from the U.S. Government and prosecution,” explained O’Brien. “So I’ve held back on two articles related to the War on Terror because of the NDAA.”
NSA whistleblower Thomas Drake told attendees about the Obama Administration’s attempts to convict him under the Espionage Act and its proclivity to target whistleblowers.
“The Constitution for them is just a piece of paper, it’s an inconvenient truth, it’s not a grand experiment,” said Drake. “We don’t really have constitutional governance anymore. It is a figment of our imagination. It is hollowed-out Constitution. So the NDAA takes it to the next level.”
Moore stressed the importance of enlisting the American public in defeating the law through awareness and direct action, asking panelists: “What’s going to be the tipping point?” that sparks such outrage.
Hedges explained that a major obstacle to awakening the general populous was that the “corporate coup” has seized the people’s avenues of communication, but that the Occupy Wall Street Movement is a critical piece of the answer.
“That struck terror in the heart of the corporate state,” he said.
As for a “tipping point,” Hedges surmised that if what he’s witnessed in other countries during his more than 20 years as a foreign correspondent is any indication, the threshold is “usually something utterly benign.”
Ironic, since the alternative is something so utterly and catastrophically monumental.
“What we’re talking about today is the capacity of the U.S. government to make you disappear,” he said, bluntly.