After presenting arguments to the Second Circuit U.S. Court of Appeals in Hedges v. Obama, plaintiffs and their lawyers participated in a panel discussion. The lawsuit challenges the NDAA (National Defense Authorization Act), a pernicious law allowing the indefinite detention of American citizens without due process.
Plaintiffs were found to have standing because they could be targeted under the NDAA for “substantial support to an organization associated with terrorism”–support being so vaguely defined that it could encompass their work as journalists and activists.
The judge hearing the case imposed a stay on the NDAA in December 2012.
Judge Katherine Forrest determined last year that the provision of the NDAA—Section 1021—was unconstitutional and issued a permanent injunction. The government not only appealed the ruling but also asked Forrest for an emergency stay. She denied the request and the government went to the Second Circuit and obtained a stay so that it could continue to use the provision to its full extent as it is being challenged.
The Justice Department went beserk, filing an appeal on the injunction on a Friday afternoon, as Chris Hedges describes in the panel discussion. The appeal was successful, and the NDAA is in effect.
The AUMF (Authorization of Military Force) of 2001 gave the president the power to snatch up accused terrorists during combat and hold them without due process. Now under the NDAA, the president can not only detain accused terrorists but their supporters as well–however the president might choose to define them–including U.S. citizens.
Carl Mayer, one of the lawyers representing the plaintiffs, says,
Almost with each passing year, the government keeps pressing the outer boundaries of who they can target. First it’s Al Qaeda, then it’s quote “associated forces.” They’re expert at making up these squishy terms like co-belligerents. They keep expanding the target for the government.
In the lawsuit the government claims it doesn’t have any citizens in detention. But Hedges thinks that the administration “aggressively” sought to appeal to the injunction imposed on the NDAA precisely because it is holding those with Pakistani-American dual citizenship in Bagram. If the injunction remained in place, the government would have been in contempt of court.
What if the DOJ has an even bigger legal problem to solve? Tangerine Bolen of RevolutionTruth says it might. The broad sweep of the NDAA looks like “a retroactive attempt to legislatively fix the fact that they didn’t have these powers [of indefinite detention of American citizens], and they’ve been using them all along.”
Like preemptive warfare and drone warfare, it may be the case that our government does what it wants and makes up legal justification for it after the fact. By passing laws like the AUMF and NDAA, both parties of Congress seem happy to give unchecked powers to the President. Will the third branch be so compliant?
As Carl Mayer says, this case comes down to the question, are we going to have a civil justice system or a military justice system?
“I get it—it’s important for the government to be able to murder me and any of my friends.” onion.com/12wO2k9
I thought about this possibility during a protest at the White House against HR 347, the bill which President Obama signed a few days ago. HR 347 makes federal crimes out of infractions at protests that used to be prosecuted under local ordinances. The law is concerned with keeping protestors away from what they’re protesting–public figures and events–broadly defined as “restricted buildings and grounds.” They include any where Secret Service-protected individuals can be found. Any disruption of “Government business or official functions” is a felony offense.
Just a few days after the signing, protestors in DC laid down in front of the White House to demonstrate that they “knowingly” were protesting at the President’s residence, an area ostensibly restricted by the new legislation.
Free Speech in America
A little later, marching through DC, the protestors obstructed traffic Downtown. An older man came up to me, distressed by young people defying the police. He turned out to be an immigrant from Ukraine. “Why do they do this? The police here, they are good. They are–hooligans.” He had a good deal more to say on the subject, ranging from Occupiers being tools of the enemies of America to nostalgia for the relative security of Soviet pensions and low street crime rates. Whatever he was raving about, the way he talked and dressed, it took me back to my days as a student during the last gasps of the Soviet Union.
In those years of glasnost (openness), when Gorbachev the reformer tried to steer the titanic Soviet state into modernity, protests on the streets were out of the question. On every holiday you saw parades of the same old-fashioned Red variety as you had for 70 years. I distinctly remember some stray tank careening past my dorm during some patriotic display. You might not have had to fear your Young Pioneer son or daughter turning you in to Stalin, but people watched what they said at work at the very least. Things were freer than they had been. Still, free speech was for the purpose of Party apparatchiks praising the Party. Even today in Putin’s Russia, there is no such thing as dissent without fear of retribution; only a few years ago, journalist Anna Politskovskaya was murdered for her criticism of Putin and opposition to the Chechen conflict.
The contrast of memories of the Soviet Union and witnessing American youth lie down in front of the White House made me reflect on both how good we have it in the US and conversely the dark path our government seems to taking. Many sovereign states have constitutionally guaranteed civil rights including protected speech. Few have all the guarantees of the First Amendment much less fulfilled them as well as the US has, even with gross historic flaws such as the McCarthy hearings. To lose the full measure of our freedoms would be grave. They’re worth fighting tooth and nail for.
The truth is that in the last decade since 9/11, an American public cowed by fear and increasing passivity has swallowed the Orwellian equivalence of protest/dissent with terrorism. Americans have not only accepted but embraced an erosion of our own civil rights. We haven’t slipped into a dystopian nightmare yet, but without vigilance, we could lose what we so easily take for granted. A new legal regime to curb and outlaw protest makes vigilance all the more difficult.
An Executive with Dictator’s Powers
Remember when it was unpatriotic, if not treason, to question the President? That was the lead-up the Iraq War. Dissent is never popular, but Iraq War dissenters were shunned and ignored, especially in the cowardly mainstream media. More long-lasting effects on civil rights were part of the fabric of going to war in Iraq.
The National Defense Authorization Act (NDAA), signed by Obama as his last act of 2011, got a lot of attention by authorizing the president to indefinitely detain US citizens. But, as Glenn Greenwald notes, the Iraq War was the precursor. President Bush and President Obama claimed the power of indefinite detention and more under the 2001 Authorization of Military Force in Iraq:
…while the powers this bill [NDAA] enshrines are indeed radical and dangerous, most of them already exist. That’s because first the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces.”
The unmitigated authority of the president to detain someone, anyone, plainly has the potential to chill dissent. Protest movements like Occupy are at risk because they could be targeted as terrorist groups, and individuals detained without charges or due process under the NDAA.
Like the NDAA, HR 347–the ‘‘Federal Restricted Buildings and Grounds Improvement Act of 2011”– codifies and increases powers that are “radical and dangerous.” It’s an extension of already existing laws encroaching on public protest. While the government may make reasonable limitations on the time, place and manner of protest, HR 347 restricts First Amendment rights to a greater degree.
It’s now a federal offense “to impede or disrupt the orderly conduct of government business or official functions, engage in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds” and at any time when Secret Service are on the scene. HR 347 also lowers the intent requirement. It was already illegal to “knowingly and willingly” protest in restricted areas, now the standard is “knowingly.”
The power to designate an area restricted is broad and vague; police may be able to pronounce this on the spot. The penalties are also higher–offenders will be charged with felonies instead of misdemeanors. Although keeping protestors away from the object of protest is unfortunately nothing new (for example, in college I was corralled into pens with other protestors during a crucial Bush-Dukakis debate), HR 347 is pernicious because protestors must keep entirely clear of figures protected by the Secret Service–our most prominent political leader and candidates. Glitter-bombing is out, unless you’re prepared for some major criminal penalties.
Self-censorship and dissent
In spite of the paramilitarization of police, the tightening of laws to curb protest, and the equation of protest with threat to the public, we have to remember that in comparison we still have it good in the US. This isn’t Syria, China, Tibet, Burma or any number of African dictatorships–where dissent almost certainly leads to imprisonment, torture or death.
Yet as you observe the control totalitarian governments wield over their people through fear, our rights become even more precious. As an activist, when you start to ask, “What will happen if I do this, or this…?” then a law has already done its damage. You’re bound to scale back and muzzle yourself in consideration of consequences. The authorities who now see little difference between protest and terrorism seek more and more power to “protect” the non-dissenting public.
The Democratic and Republican National Conventions are coming up. The G8 Summit was moved to Camp David out of caution, while the NATO summit remains in Chicago. How much you want to bet that Homeland Security designates them all as “events of national significance”? HR 347 and its friends were written and passed with just such events in mind, and they’re precisely the ones where dissenters need to be on the streets.
For ten days, figures in orange jumpsuits and black hoods have haunted the White House. And on Wednesday, January 11, the tenth anniversary of the opening of the Guantanamo detention center, protestors in orange and black will try to span the area between the White House and the Capitol.
Witness Against Torture, a campaign of the Center for Constitutional Rights, had held annual demonstrations to mark the anniversary of the opening of Guantanamo. This year, fifty people have undertaken a ten-day hunger strike, and Amnesty International and other human rights organizations will join them in their call to close the infamous detention center and “black sites” like Bagram.
At a small demonstration of street theater in front of the White House on Sunday, a speaker said that many Guantanamo detainees are “guilty of nothing but being at wrong place at wrong time and being Muslim.”
Carmen Trotta with Witness for Torture called the failure to shut down Guantanamo “the most significant failure of the Obama administration.” He added that the recent National Defense Authorization Act‘s curtailment of civil rights was “completely expected,” because Gitmo was “bound to come home in several different ways.”
The January 11 Day of Action will begin at noon in Lafayette Square.