(Washington Blog) – Pulitzer prize winning reporter Chris Hedges, along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others – sued the government to join the NDAA’s allowance of the indefinite detention of Americans.
The trial judge in the case asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys.
The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.
The trial judge ruled that the indefinite detention bill was unconstitutional. But the court of appeal overturned that decision, based upon the assumption that limited the NDAA to non-U.S. citizens:
We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were 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—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.
The court of appeal ignored the fact that the co-sponsors of the indefinite detention law said it does applyto American citizens, and that top legal scholars agree.
Monday, the U.S. Supreme Court declined to hear an appeal of the case, thus blessing and letting stand the indefinite detention law stand unchanged.
The court of appeal’s Orwellian reasoning may sound – at first blush – like it might be a good thing. After all, the court said there’s no indication that the indefinite detention provision will be applied against U.S. citizens.
However, by refusing to strike down the law and insist that any future laws explicitly exempt U.S. citizens, it leaves discretion in the hands of the executive branch.
The effect of the decision will be to allow the U.S. government to kidnap and indefinitely detain U.S. citizens who protest or dissent against the government … and the courts will never hear any legal challenge from the prisoners. The detainee will not get to say:
The courts said the indefinite detention law isn’t written to apply to U.S. citizens, so you have to let me go!
And he won’t get to say:
You’re confusing me with another John Smith, and I can prove it!
After all, prisoners can be held under the indefinite detention bill without trial, without being allowed to present evidence or hearing the evidence against them, without letting the citizen consult with a lawyer, and without even charging the citizen with any crime.
So – if you’re thrown into a hole somewhere – no one will even hear your story.
Chris Hedges noted in November:
If [the indefinite detention law] stands it will mean, as [the trial judge] pointed out in her 112-page opinion, that whole categories of Americans—and here you can assume dissidents and activists—will be subject to seizure by the military and indefinite and secret detention.
Constitutional attorney John W. Whitehead agrees:
No matter what the Obama administration may say to the contrary, actions speak louder than words, and history shows that the U.S. government is not averse to locking up its own citizens for its own purposes. What the NDAA does is open the door for the government to detain as a threat to national security anyone viewed as a troublemaker. According to government guidelines for identifying domestic extremists—a word used interchangeably with terrorists, that technically applies to anyone exercising their First Amendment rights in order to criticize the government.
If you think they’re crying wolf, just remember that the CIA director relabeled “dissidents” as “terrorists” in 1972 so that he could continue spying on them … and nothing has changed.
Daniel Ellsberg notes that Obama’s claimed power to indefinitely detain people without charges or access to a lawyer or the courts is a power that even King George – the guy we fought the Revolutionary War against – didn’t claim. And former judge and adjunct professor of constitutional law Andrew Napolitano points out that Obama’s claim that he can indefinitely detain prisoners even after they are acquitted of their crimes is a power that even Hitler and Stalin didn’t claim.
Access to justice is already being severely curtailed in America. Even when the prisoner is afforded a trial, it is becoming more and more common for the government to prosecute cases based upon “secret evidence” that they don’t show to the defendant, his lawyer … or sometimes even the judge hearing the case. The government uses “secret evidence” to spy on Americans, prosecute leaking or terrorismcharges (even against U.S. soldiers) and even to assassinate people. And see this and this. Secret witnesses are being used in some cases. And sometimes lawyers are not even allowed to read their own briefs. Indeed, even the laws themselves are now starting to be kept secret.
But prisoners under the indefinite detention bill have it much worse: they don’t get any trial or opportunity to talk to a judge, any access to a lawyer … or perhaps any information about what they’re even accused of doing or why they were nabbed in the first place.
After the Supreme Court published its decision, Tangerine Bolen wrote:
The Supreme Court has made it abundantly clear, first via Citizens United, then most recently via McCutcheon v. FTC, that corporations are “persons” whose “free speech” must be protected at all costs – including the cost of democracy – while our rights – the rights of living, breathing people, the fundamental right of due process and our fundamental rights of free speech and association – those no longer matter. They are to be trampled.
Under the war on terror, the United States government has trampled upon the fundamental human rights of people around the world since 9/11. The Bush administration manufactured a false war based on carefully crafted lies, false evidence and sickening manipulation. In the wake of that war, our courts prefer to continue to defer to a disingenuous national security narrative that has arisen out of the lies, paranoia, and incredible lawbreaking of our own government, including kidnapping, torturing, indefinitely imprisoning, and assassinating people with impunity – all of this against both reason and international law.
We are no longer a nation ruled by laws. [She’s right.] We are nation ruled by men who have so steeped themselves in a false narrative that at the same time they are exponentially increasing the ranks of terrorists, they are destroying the rule of law itself. [Indeed, we’ve gone from a nation of laws to anation of powerful men making one-sided laws to protect their own interests … in secret. Government folks are using laws to crush dissent. It’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.] It is madness upon madness – the classic tale of becoming the evil you purport to fight while believing you remain righteous.
We have tried to stand up to this madness: we are outnumbered, outspent, and outgunned – a David intrepidly fighting a Goliath that spans the planet and has the power to shape our “reality” – thus shaping what the courts even see. We have sacrificed greatly to do this – and yet we would do it all again.